Should you be concerned? What to do if you receive a Concerns Notice

So you’ve run your mouth, or more likely your fingers, the aggrieved takes issue and gives you a Concerns Notice alleging that you’ve defamed him/her and sometimes, it. What do you do?

1. Do nothing

Doing nothing can be useful, until it isn’t.  As discussed in my previous article on defamation, the delivery of a Concerns Notice is the first, now prerequisite step, of commencing defamation proceedings.

Following the delivery of a Concerns Notice, the aggrieved may commence defamation proceedings after 28 days. On the basis that the Concerns Notice is valid, doing nothing may result in proceedings being commenced and you being exposed to sometimes unnecessary litigation.

Upon receiving a Concerns Notice, call your lawyer. Your lawyer will then review and consider the Concerns Notice and advise you of the options available to you.

2. Request further particulars

The Defamation Act 2005 (Qld) (the Act) is quite clear on what is required to be contained in a Concerns Notice. To the extent that the Concerns Notice is lacking in the necessary particularity required, a Further Particulars Notice may be delivered by the alleged publisher to the aggrieved.

Not only a useful tool in the litigator’s arsenal, but a Further Particulars Notice also assists the alleged publisher by putting the onus of further delineating the alleged defamation, on to the aggrieved.
On delivery of a Further Particulars Notice, the aggrieved has 14 days to provide further particulars of the information required to be in a Concerns Notice. Should the aggrieved not provide the further particulars requested within 14 days, he/she (and sometimes it) is taken not to have delivered a Concerns Notice at all.

3. Make an offer to make amends

The commercial reality of defamation proceedings is that often, they are not commercially viable to see through to trial. An offer to make amends may, subject to its contents, be sufficient to resolve the matter early. Importantly, any admission made in such an offer is not admissible evidence.

Again, the Act is quite clear on the contents of an offer to make amends. However, of interest to our previous client’s on the receiving end of a Concerns Notice, is that the offer to make amends must include an offer to pay the expenses reasonably incurred by the aggrieved:

  • before the offer to make amends was made; and
  • in considering the offer to make amends.

 

An offer to make amends may be made within 28 days of delivery of a Concerns Notice. However, upon the aggrieved providing a response to a Further Particulars Notice, the period in which an offer to make amends can be made is extended to 14 days from the delivery of that response.

In my next article, we will provide an overview of the defences to defamation.

If you have received a Concerns Notice, please reach out – even if you think the Concerns Notice is baseless.

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