In Short
- A defamation claim begins with a “concerns notice” outlining the alleged defamatory content and requested resolution.
- You can defend against defamation with defences like truth, privilege, or honest opinion.
- Alternatively, you may offer to correct the content, apologise, or provide compensation to resolve the claim.
Tips for Businesses
If faced with a defamation claim, carefully review the concerns notice and decide whether to defend or resolve the matter. Seeking legal advice early can help you avoid prolonged legal disputes. Consider settling through amends, such as issuing a correction or apology, if you cannot justify your statements.
Defamation is the publication of false information which damages a person’s reputation. If someone feels that something you have published (your publication) has caused damage to their reputation or their business, they may take action by bringing a defamation claim against you.
If you have received a defamation claim for statements you have said or published about third parties, you will need to respond appropriately. You should consider defending the claim and take into account your interests in resolving the matter. Ideally, you want to resolve the issue without getting drawn into a protracted, expensive legal case. This article will help you understand what steps you need to take and what you should consider when responding to a threat of defamation proceedings.
The Concerns Notice
If someone has threatened you with a defamation claim, you will likely have received a “concerns notice” from the complainant.
A concerns notice is a written notice explaining what was defamatory about the publication and how they, the complainant, want it resolved. Often the complainant will state that they want you to remove the defamatory content and will seek an apology from you. In some cases, they will ask for compensation for damage to their business or reputation.
The concerns notice issued to you should set out the details of the defamatory complaint. For example, it must identify:
- where and when the comments were made;
- to whom they were made; and
- the consequences of your comments, i.e. how was it disparaging to their reputation.
You can send a letter requesting further clarification about the alleged defamation before responding to the claim. The complainant must respond with further details within 14 days of receiving your request. By sending this further request, you may save yourself from dealing with any vexatious and unsubstantiated claims.
Decide What Your Position Is
After receiving the concerns notice, you have to decide what course of action you would like to take. Primarily, you need to decide whether you were justified in making the comments or whether you are regretful and would like to make amends with the complainant.
Do You Wish to Defend Your Publication?
If you believe that you are justified in your comments you will need to look at what defences are available to you. Specifically, you will need to consider whether you can defend yourself by relying on one of the following defences.
Truth
If you can prove that the defamatory matter was substantially true, then you will most likely defeat a defamation claim. Courts may consider the defamatory matter to be true if the gist of the offensive meaning is true.
Absolute Privilege
Absolute privilege protects individuals when they give information about another person in a public forum. You may have a successful defence if you can demonstrate that you published the matter in the course of proceedings where absolute privilege arises.
Qualified Privilege
You have qualified privilege if you can prove that you had a duty to publish the material to a specific group who have a genuine interest in receiving the publication. If you can show you have qualified privilege, this is a valid defence against a defamation claim.
Public Document
It is not defamatory if you republish material which is already available in a public document, such as the record of a court’s proceedings.
Honest Opinion
To rely on honest opinion as a defence, you would need to show that your publication was:
- obvious to the third party that you were merely expressing your opinion;
- a matter which is in the public interest; and
- based on ‘proper material’, meaning your opinion was based on material that was substantially true.
Triviality
If you can prove the material was unlikely to cause any real harm, the defamation claim may be dismissed.
If you wish to defend the claim, you should respond to the complainant setting out your intention to defend the claim, and set out your defence or defences.
Offer to Make Amends
If do not believe you can justify your comments or if you do not wish to oppose the claim, you can make an offer to make amends.
An offer to make amends is a written offer to take action to correct or apologise for the publication. If you wish to make amends, you must offer to do so within 28 days of receiving the concerns notice.
An offer to make amends must:
- be in writing;
- be identified as an offer to make amends;
- include an offer to publish a reasonable correction of the matter in question;
- include an offer to take reasonable steps to tell any other person that the material is or may be defamatory; and
- include an offer to pay the expenses you reasonably incurred before the publisher made the offer.
You may also include an offer to pay compensation.
If you make a reasonable offer and the complainant rejects it, you can use the offer to defend your claim. If the court decides that the complainant should have accepted the offer, as it was a reasonable offer to settle the dispute, they may lose the case.
Key Takeaways
Defamation involves the publication of false information that damages someone’s reputation. If someone claims your statements defamed them, they may issue a defamation claim. This typically begins with a “concerns notice,” outlining the defamatory content and seeking resolution, such as content removal, apology, or compensation.
You can defend against a defamation claim by relying on defences like truth, privilege (absolute or qualified), public documents, honest opinion, or triviality. Alternatively, you can make a written offer to amend, correct, or compensate if you wish to settle. Responding appropriately can help avoid lengthy legal proceedings.
If you need help responding to a defamation claim, our experienced dispute lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Defamation is the publication of false information that damages a person’s reputation. It can result in legal claims if someone feels the information has harmed their personal or business reputation.
A concerns notice is a formal notice from the person who believes they were defamed. It outlines what was defamatory, where and when the comments were made, and what they seek in terms of resolution (e.g., content removal, apology, or compensation).
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