Offers to Make Amends in Defamation Law: Key Considerations for Publishers

Introduction

The Queensland Supreme Court decision in McVicker v Nine Digital Pty Ltd [2025] QSC 110 provides valuable guidance on the operation of offers to make amends under defamation legislation. In this case, Mr McVicker sued Nine Digital over three articles published on the 9Finance and A Current Affair websites concerning the collapse of online travel agency Bestjet. Nine Digital successfully defended the claim by establishing it had carried out the terms of an accepted offer to make amends, thereby engaging the statutory bar under section 17(1) of the Defamation Act 2005 (Qld). The dispute centered on whether Nine Digital had properly published the agreed correction on its websites, with the Court ultimately finding in the publisher's favor.

The Statutory Framework

Under Division 1 of Part 3 of the Defamation Act 2005, publishers have an opportunity to resolve defamation claims through the offer to make amends procedure. Section 14 provides that a publisher may make an offer to make amends in response to a concerns notice, while section 15 sets out the requirements for such offers.

Critically, section 17(1) provides that if a publisher carries out the terms of an accepted offer to make amends (including payment of any compensation), the aggrieved person cannot assert, continue or enforce an action for defamation in relation to the matter in question. This creates a complete defense to the defamation claim, even if the offer was limited to particular defamatory imputations.

Key Elements of an Effective Offer

An offer to make amends typically includes:

  1. Removal of the offending material - The publisher agrees to remove the allegedly defamatory content from its platforms

  2. Publication of a correction or apology - A written correction must be published in terms agreed between the parties

  3. Payment of legal costs - The publisher must pay the aggrieved person's reasonably incurred legal costs

  4. Notification to third parties - If the material was given to others, the publisher must inform them it may be defamatory

Construction of Agreements Formed by Acceptance

When disputes arise about whether a publisher has carried out the terms of an accepted offer, courts apply ordinary principles of contractual construction. As confirmed in McVicker v Nine Digital Pty Ltd [2025] QSC 110, agreements formed by acceptance of offers to make amends are construed objectively by reference to text, context and purpose, following the approach in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37.

The New South Wales Court of Appeal decision in Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 established that while ordinary contractual principles apply to construction, the formation of such agreements is governed by the statutory regime rather than general contract law.

Publication Requirements: "Websites" vs "Homepages"

A crucial issue in McVicker v Nine Digital Pty Ltd [2025] QSC 110 was the interpretation of an agreement to publish a correction "on the 9Finance and A Current Affair websites." The plaintiff argued this required publication on the homepages or with equal prominence to the original articles.

The Court rejected this argument, finding:

  • The parties had a clear understanding of the distinction between websites and homepages, as evidenced by their correspondence

  • The agreed correction was published at unique URLs on both websites, with links appearing on the homepages for at least 24 hours

  • This mirrored how the original articles were published

  • There was no requirement for "equal prominence" beyond what was expressly agreed

Avoiding the Pitfalls: Lessons from Hafertepen

The Federal Court decision in Hafertepen v Network Ten Pty Ltd [2020] FCA 1456 provides a cautionary tale. In that case, the agreed clarification was published in an obscure location on the "terms of use" page at the bottom of the website. The Court found this did not satisfy the publisher's obligations.

Publishers should ensure corrections are:

  • Published in accessible locations on their websites

  • Available for the agreed duration

  • Not hidden in obscure or difficult-to-find pages

  • Accompanied by appropriate links where agreed

The Importance of Clear Drafting

The McVicker case demonstrates the critical importance of precise language when negotiating offers to make amends. Publishers and complainants should:

  • Clearly specify where corrections will be published (homepage, website, or both)

  • Define the duration of publication

  • Agree on the exact wording of corrections

  • Consider whether links or tiles will be used and for how long

  • Document all agreed terms in writing

Practical Considerations

When making or responding to offers to make amends, parties should:

  1. Act promptly - Strict time limits apply under section 14

  2. Be specific - Vague terms lead to disputes

  3. Consider prominence - While "equal prominence" may not be implied, parties can expressly agree to specific prominence requirements

  4. Document compliance - Publishers should maintain evidence of publication, including screenshots and viewership data

  5. Communicate clearly - Distinguish between websites, homepages, and other digital platforms

The Objective Framework

As emphasized in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, courts look to the objective framework of facts within which agreements come into existence. In the digital context, this includes understanding how content is typically published and accessed on websites, the usual duration of homepage prominence, and the technical distinctions between different parts of websites.

Conclusion

The offer to make amends procedure provides a valuable mechanism for resolving defamation disputes without litigation. However, as McVicker v Nine Digital Pty Ltd [2025] QSC 110 demonstrates, the success of this mechanism depends on clear communication, precise drafting, and proper implementation of agreed terms. Publishers who carefully document their compliance with accepted offers can rely on the strong statutory defense provided by section 17(1). Conversely, complainants should ensure their expectations are clearly expressed and agreed in writing before accepting offers. With proper attention to detail, the offer to make amends procedure can achieve its purpose of facilitating early resolution of defamation claims.