If someone has published defamatory material about you, your first step may be to issue a concerns notice under section 14 of the Defamation Act 2005 (NSW) (the Act). A concerns notice is a written notice to the publisher of the material explaining the defamatory imputations of the publication as well as answering:

  • What was the defamatory material?
  • Where was the defamatory material published? and
  • What remedies do you seek?

If you give the publisher a concerns notice but fail to adequately explain the defamatory imputations, the publisher may issue in response a notice for further particulars. You must provide the missing information within 14 days of receiving the notice or any other period you agree to with the publisher. Failure to do so will be considered as not giving the publisher a concerns notice at all.

What is an Offer to Make Amends?

An offer to make amends is a written document which outlines any reasonable corrections to the particulars stated in the concerns notice. This offer may address the specific matter or be limited to any particular defamatory imputations the publisher accepts to be true. The publisher can make an offer to amends after 28 days have passed from issuing the concerns notice.

According to the Act, the offer must satisfy the following criteria:

  • Must be in writing;
  • Must be identified as an offer to make amends;
  • Must state that the offer is only limited to a particular defamatory imputation and which imputations the offer is limited too, if applicable;
  • Must include an offer to publish a reasonable correction of the matter in question or the imputations; 
  • Must include an offer to take reasonable steps to tell any other person(s) that the material is or may be defamatory;
  • Must include an offer to pay the expenses you reasonably incurred before the publisher made the offer; and 
  • May include any other kind of offer to redress the harm you sustained, including an apology or compensation.

What if I Don’t Get an Offer to Make Amends?

It is likely that you won’t receive an offer to make amends, meaning the publisher has lost the opportunity to put forward an offer and prevent you initiating proceedings against them.

A publisher can also withdraw the offer before you accept if the publisher provides written notice. The publisher may make a renewed offer that may or may not be on the same terms as the withdrawn offer.

What Happens if I Accept the Offer to Make Amends?

If you accept the offer, you cannot continue or enforce an action for defamation against the publisher concerning the material. An apology by the publisher does not constitute an express or implied admission of fault or liability in connection with the material. 

What Happens if I Reject the Offer to Make Amends?

Your rejection will become a defence available to the publisher in a defamation action if: 

  • The publisher made the offer to make amends as soon as possible after becoming aware that the matter is or may be defamatory;
  • The publisher was ready and willing to carry out the terms of the offer once accepted; and
  • The circumstances of the offer were reasonable.

Effectively, an action can be lost because an offer was not accepted, even if the material was otherwise defamatory.

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If someone has published material about you that is or may be considered defamatory, get in touch with our disputes lawyers on 1300 544 755.

Rachel Amiri

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