Understanding Concerns Notices
A concerns notice is a formal written notice that must be served on a publisher before commencing defamation proceedings in Australia, pursuant section 12A of the Defamation Act 2005 (Qld) and under the uniform defamation legislation across Australian jurisdictions, which serves as a mandatory first step in the defamation process.
The concerns notice mechanism was designed to facilitate early resolution of defamation disputes, reduce litigation costs, and provide publishers with an opportunity to remedy defamatory publications before commencing Court proceedings.
What is the Process?
An aggrieved (party who has been defamed) who seeks to instigate defamation proceedings, must serve the publisher (party who defamed the aggrieved) with a concerns notice. A concerns notice must:
(a) be in writing;
(b) specify the location where the publication can be accessed (i.e. webpage); and
(c) informs the publisher of the defamatory imputations that the aggrieved consider are or may be carried about the aggrieved by the publication; and
(d) informs the publisher of the harm that the aggrieved considers to be serious harm to their reputation caused, or likely to be caused, by the publication; and
(e) for an aggrieved that is an excluded corporation - also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication.
If practicable, a copy of the publication should be provided together with the concerns notice.
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Frequently Asked Questions
In compliance with the Defamation Act 2005 (Qld), prior to commencing proceedings, the aggrieved party must issue a Concerns Notice to the publisher. The publisher will then generally have 28 days to make an offer to make amends. If the publisher fails to do so, or the offer to make amends is insufficient, then the aggrieved may commence defamation proceedings.
The Concerns Notice is a prerequisite for an aggrieved party wishing to commence proceedings under the Defamation Act 2005 (Qld).
The Concerns Notice is the foundation for any defamation proceedings, and consequently, if the Concerns Notice does not meet the specific requirements under the Defamation Act 2005 (Qld) and is deficient or incorrectly served, then this could mean that any proceedings commenced by you could be struck out or dismissed and you could be liable for the publishers’ legal costs.
This is why it is imperative that the Concerns Notice is drafted and served in compliance with the Defamation Act 2005 (Qld).
Defamation is the publishing (verbally, in writing, or in other form) by the publisher of unsubstantiated facts about an individual (aggrieved) to a third party, which damages the reputation of the aggrieved, causing them to suffer loss or damages.
You must demonstrate that the publication was defamatory, referred to you (expressly or that it can be reasonably inferred), and was communicated to third parties. Additionally, you need to show that it caused serious harm to your reputation.
To prove serious harm in a defamation claim, you must demonstrate significant reputational or financial damage. This can be economic loss, including (without limitation) loss of employment, loss of clients, or a downtrend in client enquiries, which may be able to be obtained from an accountant or other expert that can demonstrate the loss.
Non-economic loss including (without limitation) damages for stress, anxiety, PTSD, or otherwise, resulting from the publication, which may be able to be obtained from a treating psychiatrist or psychologist.
Yes, common defences to defamation claims include truth (justification), honest opinion, absolute privilege, and qualified privilege.
Depending on the severity of the publication in your defamation claim, you may be entitled to claim damages for economic loss (i.e. loss of business), non-economic loss (i.e. damages for stress, anxiety, PTSD) and aggravated damages.
Generally, within 12 months of publication. But in certain (strict) circumstances, this timeframe can be extended up to three (3) years.
Yes, a small business with under 10 employees or a not-for-profit organisation can sue for defamation. However, medium to large businesses with more than 10 employees cannot commence action for defamation, but they may be able to commence proceedings for tortious interference.
Absolutely. Online publications, including social media posts, blogs, and comments, are subject to the Defamations Act 2005 (Qld) and, in other states, the relevant uniform legislation will apply to social media posts.