Defamation claims appear to be on the rise in Australia, with more individuals and businesses seeking legal recourse for damage suffered to their reputation, including following recent very high-profile cases.

However, before commencing a Court claim for defamation there are specific legal steps required, and failure to follow those steps can cause a Court claim in defamation to be dismissed at an early stage, irrespective of the defamatory conduct. The legal framework governing these steps can be strict, and recent case law has had an impact on how this framework is applied. In this article, we outline the critical steps that must be taken before pursuing a defamation claim in Court, helping you to navigate a complex legal process.

I’ve been defamed – what next?

Defamation legislation in Australia has largely been “harmonised”, meaning that, in general, the laws in each state and territory are very similar. In South Australia, defamation is governed by the Defamation Act 2005 (SA).

The Defamation Act requires that, before commencing Court proceedings, a “Concerns Notice” must be sent to the proposed defendant(s). This is a standard requirement reflected in all Australian defamation legislation.

What is a Concerns Notice?

All Australian defamation legislation sets out strict criteria that a Concerns Notice is required to meet. Over the past few years, the Courts have taken a similarly strict approach to determining whether a document meets the criteria to be a Concerns Notice, and if it has not, a Court case can be thrown out, with no further opportunity for re-prosecution.

In brief, a Concerns Notice must identify the:

• Defamatory publication, and the adverse inferences regarding a claimant (described as “imputations”) that arise from that publication; and
• Serious harm suffered, or likely to be suffered as a result of the defamatory publication.

In particular, the “serious harm” suffered to a claimant’s reputation needs to be sufficiently detailed in a Concerns Notice.

With that in mind, it is important to note that Concerns Notices are not just mere letters. They should be treated like a Court document. A lawyer’s involvement in their preparation is often crucial. For example, any of the following deficiencies in a Concerns Notice could later lead to a premature end of defamation Court proceedings:

• Failing to wait the required time after sending a Concerns Notice (and / or after receipt of any requests for further details of matters raised in that Concerns Notice) to commence Court proceedings.
• Failing to properly detail the imputations that arise from defamatory publications. (This often means that you cannot include different imputations in your Court claim, which can lead to a weaker Court claim.)
• Not adequately identifying the “serious harm” suffered to a claimant’s reputation (serious harm is a high threshold to meet).
• Not validly serving a Concerns Notice (e.g. seeking to serve a Concerns Notice on an email address linked to a group, as opposed to the individual that published the defamatory matter).

Should I send a Concerns Notice?

The legislative intent behind the strict regime for Concerns Notices was to encourage people to try to reach out-of-Court settlements, as well as to ensure that only the most serious of defamation cases are dealt with by a Court.

It may be that a person who has suffered harm to their reputation does not intend to immediately commence defamation proceedings and/or unfortunately cannot meet the high threshold of proving defamation. In these circumstances, a lawyer may be approached to draft a “cease and desist” letter in lieu of a Concerns Notice. While a cease and desist letter does not carry an imminent threat of Court proceedings, it can still refer to the possibility of a claimant issuing a Concerns Notice in the future, and may be sufficient to reach a resolution.

Alternatively, if a claimant has additional complaints against the defendant(s), it may be an option to commence proceedings in an alternate Court (e.g. the Federal Court) or to follow the South Australian Pre-action protocols to seek a resolution (see our earlier article: Can I sue you?, for more information).

What do I do if I have received a Concerns Notice?

If you receive a Concerns Notice, you generally have at least 28 days for potential negotiation with a claimant, before they may be entitled to commence Court proceedings against you. You should use this time to your advantage.

We can work with you to point out any deficiencies in the Concerns Notice that the claimant may not be able to fix, and advise you as to what (if any) response should be provided. We should be able assess the claimant’s prospects of being able to successfully prosecute a Claim at Court (e.g. if the Concerns Notice sufficiently addresses serious harm), whether you can send a “further particulars notice” or if you should make any “Offer to Make Amends”.

Conclusion

The Concerns Notice process is by no means perfect but it can, and does help to, resolve a lot of claims before going to Court – whether because of the alternative time and cost involved in Court proceedings, because a person has sought legal advice and is aware of difficulties establishing their claim, or because parties want an out-of-Court settlement. Alternatively, a cease and desist letter or the pre-action regime may be used to similar effect.

If you have been defamed and want to pursue the matter, or if you have received a Concerns Notice, please contact Peter Charatsis, Brenton Priestley or Clairissa Hewitt for more information.

The above is general in nature and is not intended to, and does not, constitute professional advice.