Overview of what a 'concerns notice' is in defamation law in Western Australia

Uniform defamation legislation is in place across Australia to promote speedy and non-litigious methods of resolving defamation disputes (Defamation Act 2005 (WA) s 3(d)).

   The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is the document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

  1. It must be in writing (Defamation Act s 14(2)(a)); and
  2. It must inform 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 (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

    Alternatively, a statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2) (Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [92]).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   It is implicit in the construction of s 14(1) of the Defamation Act that a person has a reasonable period of time to respond to the content of a concerns notice (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on.