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Concerns Notices
What is a ‘concerns notice’?
The Defamation Act 2005 (WA) sets out a process by which defamation actions can be resolved and potentially settled before a formal court proceeding is instituted.
The process referred to above commences with the issue of a concerns notice by a person who believes that they have been defamed to a person who is alleged to have defamed them.
A concerns notice is a formal, written document which is prepared and issued under s. 14 of the Defamation Act 2005 (WA), the purpose of which, is to put a publisher of defamatory material on notice of:
- A defamatory statement that they may have made, including the content of the statement, when it was made and how it was made;
- The meanings (referred to as ‘imputations’) that the defamatory statement is said to convey; and,
- What the publisher is demanded to do to remedy the situation, which may include, the retraction of the material, a formal apology and payment of monetary compensation in terms of both loss to reputation and legal costs of preparing the concerns notice).
If a ‘concerns notice’ has been issued, the recipient of the concerns notice may respond with an ‘offer to make amends’.
A defamation lawyer can assist you to prepare a concerns notice which adequately sets out the defamatory content in a way that is both clear and compliant with the provisions of the Defamation Act 2005 (WA).
At Vogt Legal, we offer a discounted concerns notice preparation service in the sum of $880.00 (inclusive of GST).
Frequently Asked Questions
For a concerns notice to have effect under the Defamation Act 2005 (WA), it must set out the imputations of concern adequately. If the concerns notice fails to do so, the recipient may issue a request for particulars which, if not adequately addressed, will have the effect of depriving the concerns notice of effect for the purposes of the Defamation Act 2005 (WA).
It is therefore important that a concerns notice is prepared properly and competently by a defamation lawyer.
In Western Australia, it is not yet compulsory to issue a concerns notice before commencing a proceeding in a court in respect of a defamatory publication. Accordingly, it is not compulsory to issue a concerns notice, however, there are some undeniable benefits in doing so:
- A concerns notice serves to inform a person that what they have said is defamatory, which may result in the material being removed, ‘taken down’ or retracted.
- If you issue a concerns notice to a person and they fail to act, that fact places you in a strategically superior position to make an argument in respect of matters such as: (a) whether the person was aware of the defamatory content of the matter; (b) the failure to make an apology in respect of the conduct may serve as a basis for a more favourable damages assessment; (c) by failing to take the content down, apologise or retract it, that person may be said to have acquiesced to its content, eliminating possible future defences such as, innocent dissemination.
Actions in a potential defamation proceeding have far reaching consequences. A defamation lawyer can assist you to navigate these steps using the benefit of experience and knowledge and familiarity with the Court processes to place you in a strategically superior position than if you were attempt to navigate this process on your own.
Under the Defamation Act 2005 (WA), the issue of a valid concerns notice triggers the process by which an ‘offer to make amends’. may be made. There are strict time limits within which an ‘offer to make amends’. may be made (being 28-days from the receipt of a concerns notice under the current Defamation Act 2005 (WA)).
Within the above timeframe, it is important that you seek advice from a defamation lawyer as to whether: (a) you have any valid and meritorious defence/s to a potential claim in defamation; or, (b) in the event that no defences are appliable or of merit, you should make an ‘offer to make amends’.
For further information, read some of our articles.
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