Early Resolution of Defamation Disputes
By Steven Tapiolas
The Defamation Act 2005 (Qld) governs defamation law in Queensland. One objective of the Act is to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory material.
Part 3 of the Act provides the mechanisms to achieve this objective. Relevantly, a person who has been defamed (“aggrieved person”) can issue a concerns notice to the publisher of the defamatory material (“publisher”). The concerns notice informs the publisher that the aggrieved person considers the material carries, or likely carries, defamatory imputations. The publisher then has 28 days to make an offer to make amends.
An offer to make amends must include an offer to publish a reasonable correction and to pay the expenses reasonably incurred before the offer was made. It may also include an offer to publish an apology and an offer to pay compensation to the aggrieved person.
All persons should take considerable care when sending or receiving a concerns notice or an offers to make amends, as it may have significant consequences on any subsequent litigation. For instance:
- If the aggrieved person accepts the publisher’s offer to make amends (and the publisher carries out the terms of the offer), the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher;
- If the aggrieved person fails to accept the publisher’s reasonable offer to make amends, it is a defence to an action for defamation against the publisher if the offer was timely, capable of being carried out, and reasonable in all the circumstances; and
- The court can award costs on the (higher) indemnity basis at the end of court proceedings if one party unreasonably failed to make or accept a settlement offer.
If you are involved in a defamation dispute and have received a concerns notice or an offer to make amends (or are contemplating sending one), please contact our litigation department to ensure you are fully advised on all options available to you and consequences that may arise.