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.

The complainant is the person who believes they have been defamed.

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.

A public forum may be, for example, when giving evidence in court or a tribunal.

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

If you are on the receiving end of a defamation claim you will need to respond appropriately. The best way to respond will depend on the circumstances. If you believe the statements you made were justified, you can potentially defend the claim using a defence. However, if you would like to remedy the situation, you should remove the defamatory material immediately if possible and make an offer to make amends. If you have questions about responding to a defamation claim, get in touch with LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Charlotte Hale
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy