Concerns Notices: The Mandatory First Step

What Is a Concerns Notice?

A concerns notice is a formal written notice that a prospective defamation plaintiff must give to the publisher of allegedly defamatory matter before commencing legal proceedings. It is the gateway to defamation litigation in Australia — a step that cannot be bypassed, accelerated without court leave, or substituted by any other form of communication.

The concerns notice regime was introduced as part of the Stage 1 reforms to Australian defamation law, enacted through the Defamation Amendment Act 2020 (NSW) and equivalent legislation in each other Australian jurisdiction. The regime is set out in Part 3, Division 1 of the Defamation Act 2005 (and its equivalents). The reforms commenced in most jurisdictions on 1 July 2021.

The purpose of the concerns notice regime is to provide publishers — whether individuals, media organisations, or online platforms — with a structured early opportunity to assess the complaint, take down or correct defamatory material, and make amends to the aggrieved person without the need for expensive litigation. It reflects the legislature's recognition that in many cases, a correction and apology may be a more appropriate and proportionate remedy than a damages award, and that the public interest in free speech is best served by a regime that encourages early resolution of meritorious claims.

When Must a Concerns Notice Be Given?

A concerns notice must be given to the publisher before defamation proceedings are commenced. Section 12A of the Defamation Act 2005 provides that a plaintiff cannot commence defamation proceedings unless:

1. the plaintiff has given the proposed defendant a concerns notice in relation to the matter concerned; and
2. the period for making an offer to make amends (28 days, or such shorter period as may be permitted) has elapsed without the defendant making a reasonable offer.

Critically, the concerns notice must be given before any originating process is filed. A plaintiff who files a statement of claim or other originating document before serving a concerns notice cannot simply cure this defect by subsequently sending a notice. The proceedings will be liable to be dismissed or struck out.

The timing of the concerns notice is strategically important. Because the limitation period for defamation claims is only one year from the date of publication, a plaintiff who delays in serving a concerns notice risks having the limitation period expire before they can commence proceedings. Ideally, the concerns notice should be served promptly — within days or weeks of the plaintiff becoming aware of the publication — to preserve maximum time for pre-litigation negotiations and, if necessary, proceedings.

Requirements of a Valid Concerns Notice

Not just any written complaint will suffice as a concerns notice. The Defamation Act 2005 sets out specific requirements for a valid notice. A concerns notice must:

• Identify the defamatory matter — specify the publication complained of with sufficient particularity to enable the publisher to identify it. For online publications, this means providing the URL or other specific locator. For print or broadcast publications, the date, publication name, and relevant page or segment should be identified.
• Specify the imputations — set out the specific defamatory imputations that the plaintiff alleges the matter conveys. These must be expressed with particularity — vague descriptions such as "defamatory statements about my business" are insufficient. Each distinct imputation should be identified separately.
• Specify the serious harm — describe the serious harm that the plaintiff alleges the publication has caused, or is likely to cause, to the plaintiff's reputation. This must be specific enough to allow the publisher to assess the nature and extent of the alleged harm and to formulate an appropriate response.

A notice that fails to satisfy these requirements may be found to be invalid, leaving the plaintiff without the ability to commence proceedings on the basis of that notice. However, a plaintiff who has given an invalid notice may be entitled to serve a fresh, valid notice — subject to the limitation period still being available.

The 28-Day Period

Once a valid concerns notice has been given, the publisher has 28 days from the date of receipt to make an offer to make amends. During this 28-day period, the plaintiff cannot commence defamation proceedings based on the matter identified in the notice.

Within the 28-day period, the recipient of the concerns notice has three principal options:

1. Make an offer to make amends — the publisher may respond with a written offer to take corrective action, apologise, and offer compensation. This is the outcome the regime is designed to encourage. A reasonable and timely offer to make amends, if rejected by the plaintiff, constitutes a complete defence to the defamation claim.
2. Dispute the notice — the publisher may dispute the validity of the notice or deny that the matter was defamatory or that serious harm was caused. A dispute does not extend the 28-day period — the plaintiff may commence proceedings once the period elapses regardless of whether the publisher has disputed or responded.
3. Ignore the notice — the publisher may take no action within the 28-day period. In that case, the plaintiff may commence proceedings after the period expires. The publisher's failure to respond may be relevant to the assessment of damages, and in particular may support an award of aggravated damages.

In some urgent circumstances — for example, where the defamatory publication is causing ongoing and escalating harm, or where an injunction is urgently needed — a court may abridge the 28-day period and permit the plaintiff to commence proceedings earlier. However, this is exceptional and requires a compelling case for urgency.

Offer to Make Amends

The offer to make amends is the centrepiece of the pre-litigation concerns notice regime. Under Part 3, Division 2 of the Defamation Act 2005, a publisher who has received a concerns notice may make a formal offer to make amends. The offer must be in writing and must include, or offer to include, such of the following remedial steps as are reasonable in the circumstances:

• a correction of the defamatory matter, in a form and manner that is reasonable having regard to all the circumstances;
• a reasonable apology for the publication of the defamatory matter;
• notification to the persons to whom the defamatory matter was published of the correction and apology;
• an offer to pay compensation for any harm to the plaintiff's reputation caused by the publication, including reasonable costs incurred in connection with the matter.

The offer must be made in good faith and must be a genuine attempt to remedy the harm caused by the publication. An offer that makes inadequate provision for correction or compensation — or that is made so late as to have little practical effect — may not constitute a "reasonable" offer for the purposes of the Act.

If the plaintiff accepts the offer to make amends, the dispute is resolved and the agreed remedial steps are implemented. If the plaintiff unreasonably rejects a reasonable offer to make amends, the publisher has a complete defence to the defamation claim (s 18(1) Defamation Act 2005). Courts assess the reasonableness of the offer objectively, having regard to the nature of the defamatory matter, the extent of harm, and the remedial steps offered.

A defendant who makes a reasonable offer to make amends that is rejected, and who is subsequently found liable in proceedings, may also have the plaintiff's damages reduced on account of the rejected offer (s 19 Defamation Act 2005).

What Happens After the 28 Days?

Once the 28-day period has elapsed without a reasonable offer to make amends being accepted (or without any offer being made), the plaintiff is free to commence defamation proceedings. At this point, the standard litigation process applies: the plaintiff files an originating process (typically a statement of claim) identifying the defamatory matter, the imputations, the publication, the serious harm, and the remedies sought.

The concerns notice and any response to it become part of the litigation record and will be relevant to a number of issues at trial, including:

• the adequacy of the concerns notice (which the defendant may challenge if it believes the notice was invalid);
• the reasonableness of any offer to make amends made by the defendant and any response to that offer by the plaintiff;
• the assessment of damages, including whether aggravated damages are warranted by reason of the defendant's response (or failure to respond) to the concerns notice; and
• the assessment of costs, where the court may take into account a party's conduct in the pre-litigation phase.

Throughout the post-notice period, the limitation period continues to run. A plaintiff who has served a concerns notice must be mindful that the one-year limitation period from the date of publication applies, and that commencement of proceedings must occur within that period (or within an extended period if the court grants an extension).

Common Mistakes

The concerns notice regime is technical and unforgiving. Common mistakes that can invalidate a notice or compromise a defamation claim include:

• Insufficient identification of the publication — failing to specify the URL, date, or publication name with enough particularity to enable the publisher to identify the relevant material.
• Vague or imprecise imputations — describing the defamatory content in general terms rather than identifying specific imputations. Courts have struck out notices that failed to particularise the imputations alleged.
• Inadequate serious harm particulars — failing to provide sufficient information about the harm caused or likely to be caused to the plaintiff's reputation. A bare assertion of "serious harm to my reputation" is unlikely to be sufficient.
• Serving the notice on the wrong party — the notice must be served on the publisher of the defamatory matter, which may not always be obvious — particularly in online cases where content may have been republished or shared by multiple parties.
• Commencing proceedings too early — filing proceedings before the 28-day period has elapsed, which may result in the proceedings being stayed or dismissed.
• Allowing the limitation period to expire — failing to serve a concerns notice promptly, leaving insufficient time to complete the 28-day period and commence proceedings within the one-year limitation period.
• Accepting an inadequate offer to make amends — accepting an offer without obtaining specialist legal advice on whether the offer constitutes reasonable amends for the harm caused. Once an offer is accepted, the plaintiff generally cannot pursue further proceedings in relation to the same publication.

Strategic Considerations

Far from being a mere procedural hurdle, the concerns notice is a powerful strategic instrument that experienced defamation lawyers use to shape the litigation landscape in their client's favour. Key strategic considerations include:

• Framing the imputations favourably — the imputations identified in the concerns notice form the foundation of the plaintiff's case. Drafting them carefully — to capture the full sting of the defamatory publication while avoiding overreach — is a critical first step that will influence every subsequent step in the litigation.
• Articulating serious harm persuasively — a well-drafted concerns notice that sets out detailed and compelling evidence of serious harm sends a powerful signal to the defendant about the strength of the plaintiff's case. This can accelerate and improve the quality of any offer to make amends.
• Using the 28-day period for negotiation — the 28-day period is an opportunity for direct negotiation between the parties. An experienced defamation lawyer can use this period to explore settlement options, including take-down of the defamatory material, corrections, apologies, and compensation, without committing to litigation.
• Preserving aggravated damages options — if the defendant fails to respond or responds inadequately, the plaintiff's legal team should document this conduct carefully, as it may support an award of aggravated damages in any subsequent proceedings.
• Assessing the defendant's response to evaluate litigation risk — the defendant's response to the concerns notice — whether a substantive offer to make amends, a bare denial, or silence — provides valuable intelligence about the defendant's case and their willingness to defend proceedings. This intelligence informs the plaintiff's decision about whether to proceed to litigation or to accept a negotiated resolution.

How Matrix Legal Can Help

A concerns notice drafted by a specialist defamation lawyer is a fundamentally different document from one prepared without legal assistance. The difference can be decisive — both in terms of the notice's validity and in terms of its strategic impact on the defendant.

Matrix Legal's principal, Mark Stanarevic, has drafted hundreds of concerns notices across the full spectrum of defamation matters — from online defamation involving anonymous social media posts to high-profile matters involving national media organisations. Mark provides:

• Expert drafting of concerns notices that satisfy all statutory requirements and are strategically framed to maximise impact;
• Advice on the identification of publishers — including in complex online cases where responsibility may be shared among multiple parties;
• Assessment of whether a published offer to make amends is reasonable and advice on whether to accept or reject it;
• Representation in negotiations during and after the 28-day period; and
• Prompt advice on limitation period management to ensure clients do not lose the right to bring a claim.

If you have been defamed — or if you have received a concerns notice — contact Matrix Legal immediately for a free, confidential case assessment.

Frequently Asked Questions — Concerns Notices

This guide is general information and not legal advice. Defamation law is complex and fact-specific. Seek specialist legal advice about your particular circumstances.