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Defamation | The First Steps

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The First Steps

There have been some high profile defamation cases recently where celebrities have successfully sued media conglomerates for publishing defamatory articles. While those stories are entertaining to read about, you may have wondered “what legal options are available if someone is making wrongful, unjustified, or just plain nasty comments about me?”

Concerns Notice
If someone has made a comment to a third party which is likely to damage your reputation, you have the right to issue a Concerns Notice. A Concerns Notice must specify each and every defamatory imputation, and gives the person who made the defamatory comment 28 days to ‘make amends’ – that is, offer to publish a correction, apologise, and pay reasonable expenses. If you are satisfied and accept the offer to make amends, then the matter is concluded and you cannot sue for defamation. However, if you are not satisfied with the offer, or no offer is made within 28 days, you may commence legal proceedings for defamation.

A Concerns Notice is an effective way to have a damaging online post removed or have someone send a correction email to set the record straight. However, to protect your right to take legal action, it is important that every defamatory imputation is properly specified, as your right to sue is contained to what you have listed in the Concerns Notice. While not legally required, it is also a good idea to specify what kind of offer you are willing to accept, providing the exact wording for what you consider to be an acceptable correction to be published.

There are defences available to defamation, for example where the damaging comments: are true, form a critical opinion, are made in the public interest, or are protected by parliamentary privilege. If a person thinks that these defences can be raised, they may choose to ignore the Concerns Notice. However, ignoring a notice can be risky, even if you do have a good defence, as the aggrieved person may commence legal proceedings which can be very costly to defend. There was a high profile case recently in Queensland where some of the defendants to a defamation case were ordered to pay the legal costs of the plaintiff – before the matter had even gone to trial. If you receive a Concerns Notice, even if you are sure what you said is justified and your defence is ‘bulletproof’, it is best to seek legal advice as to what action you should take, as the consequences can be devastating.

Time limits
Legal proceedings for defamation must be filed by no later than 1 year after the date the defamatory comments were made or published. Accordingly, a Concerns Notice should be sent no later than 11 months after the defamatory comments were made. In respect of comments published online, the date of publication is actually the date it can be accessed online, not the date on which it is first published. This means that for comments posted online, the time limit is effectively one year after the comments have been removed from access via the World Wide Web. Nevertheless, we consider that you should take action as soon as possible if you find out that potentially defamatory comments have been made about you.

Other restrictions
An action in defamation cannot be made by any company with more than 9 employees, or a company that is part of a group of companies. Also, despite the well-known proverb that “you should not speak ill of the dead”, an action in defamation cannot be brought or maintained on behalf of a deceased person.

Recovering Costs
Clients often ask if they can recover their legal costs. Usually, your legal costs for a dispute would only be recoverable if legal proceedings are commenced and resolved in your favour. However, in the case of defamation, the legislation provides that an Offer to Make Amends must include an offer to pay the reasonable expenses of preparing the notice and considering the offer. So, while you cannot enforce the recovery of legal costs, if a person is offering to make amends, they should offer to pay your costs if they wish to rely on the offer to completely extinguish your right to sue.
In practice, it can be difficult to recover your costs, and although we have had examples where we recovered 100% of our clients’ costs for preparing a Concerns Notice, we would not suggest that you proceed with a Concerns Notice with the expectation that you will be able to recover your costs.

Taking action for defamation is an effective tool to protect the reputation of you or your business. A well drafted Concerns Notice will usually result in remedial action by way of having an offending comment removed or a correction issued. Further, if you receive a Concerns Notice for something you might have said, it is critical that you seek legal advice as soon as possible as the consequences of inaction may be disastrous.

Ben Schefe 
Director | Litigation
PHONE +61 7 3370 5100

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