Sending a defamation concerns notice ' a complete guide

• Published date: 25 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Libel & Defamation, Publishing
• Law Firm: Stonegate Legal
• Author: Mr Wayne Davis

Article Summary

Have you been defamed and looking to send a defamation concerns notice?

This article delves into the intricacies of defamation law, a legal framework established to protect individuals and certain organisations from damaging statements that could tarnish their reputation.

It outlines the key components of defamation, including its definition, the essential elements required to establish a claim, and the significant role of Concerns Notices in addressing defamation allegations.

The article also highlights the recent reforms that introduced a "serious harm" threshold, emphasising the procedural steps and strategic considerations crucial for navigating defamation actions.

Through a detailed examination of the Defamation Act 2005, it provides valuable insights into how aggrieved parties can effectively use concerns notices to initiate a resolution process, the specific conditions under which corporations can take action, and the paramount importance of obtaining legal advice in defamation matters.

Our experienced defamation lawyers provide you with a complete guide to concerns notices.

What is Defamation?

Defamation (commenced by a concerns notice) encompasses the legal framework designed to safeguard individuals and certain organisations from untrue or harmful information and assertions that could negatively impact their social standing or reputation.

This area of law is established through a mix of common law and statutory provisions.

The publication is defamatory if it:

1. Injures the reputation of the person by exposing it to hatred contempt, ridicule, or being though less of; and/or
2. Lowers the person estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
3. Put's the person in the position of being shunned and avoided.

A publication can be done through any means, including:

1. Images or cartoons.
2. Spoken words (conversations, speeches, broadcasts).
3. Written words (articles, social media posts, emails).

If these things happen, then you might have a claim in defamation.

The Four (4) Key Elements of Defamation

There used to be three key elements to defamation is Australia, however the defamation reforms in 2021 essentially added a fourth. The four (4) key elements of defamation are:

1. A person made a publication to a third-party.
2. The publication named the aggrieved person or identified them in some way.
3. The publication was defamatory or had defamatory imputations.
4. The defamatory publication is likely to cause serious harm.

A publication can be almost anything including things like blog posts, advertisements, emails, Facebook posts, internet articles, Instagram posts, newspaper articles, magazine stories, novels and books, letters, notes, online business reviews, paintings, photographs, poems, radio shows, SMS text messages, songs, television shows, Twitter posts, YouTube, pictures, gestures or oral utterances, any other thing by means of which something may be communicated to a person.

A publication is defamatory is it lowers the aggrieved person's reputation. A statement "lowers reputation" whether written, spoken, or depicted, if it conveys a meaning that lowers the person's reputation in the eyes of reasonable members of the community. This could involve portraying them as:

1. Behaving in a dishonourable or immoral way.
2. Dishonest or untrustworthy.
3. Having a criminal record (if untrue).
4. Incompetent in their profession.

The defamatory publication must also cause serious harm or be above the serious harm threshold in defamation. Section 10A of theDefamation Actestablishes that it is an element (serious harm element) of acause of action for defamation.

The critical aspects to illustrate the actual serious harm include:

1. The reach and impact of the publication, including the number of people it reached ' though the total count alone may not be conclusive.
2. How widely and repeatedly the publication was distributed taking into account any further sharing or the "grapevine effect" ' and looking at signs of its influence, such as public reactions on social media.
3. The publication's format ' influencing how closely the audience pays attention to and interprets its content.
4. The geographic distribution of the publication's audience ' showing where the readers or viewers were based.
5. How the audience understood the publication ' examining if it led them to think less of the plaintiff, though the absence of such evidence isn't necessarily critical.
6. The publication's topic ' connected to what the audience already knew or thought about the plaintiff's reputation.
7. The timing and longevity of the publication ' emphasising how long-lasting the publication is, which could cause damage (for instance, if it's online or on social media, its persistent availability, out of the plaintiff's control, could damage the plaintiff's reputation at any time it's accessed).

Full detailed article here - Serious Harm Threshold in Defamation

If these elements can be satisfied, then the first compulsory step is to issue a defamation concerns notice.

What is a Concerns Notice?

A defamation concerns notice is a formal written notice to a publisher of a defamatory publication. It puts the publisher on notice that their published statement is defaming you. If someone has made a defamatory publication about you, the first step is sending them a concerns notice.

A concerns notice is prescribed in section 12A of the Defamation Act 2005 (Qld), and says:

(1) For the purpose of this Act, a notice is a "concerns notice" if -
(a) the notice -
(i) is in writing; and
(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and
(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question; and
(iv) informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question; and
(v) for an aggrieved person 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 of the matter in question; and
(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Requirements for a Concerns Notice

Therefore, following section 12A of the Defamation Act, the requirements for a concerns notice are:

1. The concerns notice must be in writing.
2. The concerns notice must include the location of the publication.
3. The concerns notice informs the publisher about the defamatory imputations.
4. The concerns notice must outline the serious harm caused.
5. The concerns notice should include a copy of the publication (if possible).

So, the requirements for a defamation concerns notice are that it must be in writing, contain a copy of the publication (if possible), the location of the publication (if possible), outline the serious harm, and identify the defamatory imputations.

All relatively straightforward, but what is a defamatory imputation?

What is a Defamatory Imputation?

The Defamation Act 2005 does not define what is defamatory or how the meaning of the matter should be interpreted, leaving those issues to be determined in accordance with the case law.

The Cambridge Dictionary defines "imputation" to mean:

a suggestion that someone is guilty of something or has a particular bad quality.

In the case of Hall-Gibbs Mercantile Agency Ltd v Dun [1910] HCA 66 ,there is a discussion relevant to the definition of "imputation" in the context of defamation law. Griffith C.J., in the judgment, clarifies the meaning of "imputation" as used in defamation law, and says:

I am unable to see any reason for so limiting the meaning of the word "imputation." "Impute" is an ordinary English word, and, as I understand it, is properly used with reference to any act or condition asserted of or attributed to a person.

To impute something to someone is to suggest they are responsible for it, or that it motivates their actions, or as coming from that person. This definition is broad and encompasses both positive and negative attributions.

Also, this judgment emphasises that if the act or condition imputed is such that the plaintiff's reputation is likely to be injured by it, or the plaintiff is likely to be injured in their profession or trade, then, according to Queensland law, it is considered defamatory and constitutes an actionable wrong.

In Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6 the High Court of Australia discussed the definition of "imputation" within the context of defamation law. The court clarified that an imputation concerns any statement about a person (or entity) that could potentially injure their reputation, their profession or trade, or cause them to be shunned, ridiculed, or despised.

An imputation can be expressed directly, by insinuation, or by irony. The key question is whether the matter published is likely to harm the reputation of the person or...