Last updated 24 August 2016
Before commencing court proceedings, you should consider whether the matter can be resolved without the need for litigation. The Defamation Act 2005 (Qld) (Defamation Act) sets out a process to assist resolution of disputes without going to court.
It is important when trying to resolve a dispute that you protect your option to commence proceedings in a court if the matter cannot be resolved. You must keep copies of all letters and emails between the parties about the matter and keep a copy of the defamatory matter. If you seek legal advice ensure you take this correspondence and the defamatory matter with you to see the lawyer.
Steps to take if someone has published something defamatory
If a person has published something defamatory you should take steps to notify that person that you consider the matter defamatory and that they should withdraw the publication. You need to prepare a Concerns Notice which must:
- be in writing
- specify that it is a Concerns Notice issued in accordance with the Defamation Act
- set out what imputations you consider can be made as a consequence of the defamatory matter. For example, if a person writes on Facebook that you ‘stole some money’ the imputations that could be drawn from that statement include you are dishonest, untruthful and guilty of a crime (s 14 Defamation Act).
In your Concerns Notice, set out what you would like the person who published the defamatory matter to do, for example:
- ask that person to remove the defamatory matter within a specific timeframe and cease publishing defamatory matter
- ask for an apology to be published to the same audience that received the defamatory matter. If you are seeking a public apology you should require that the content of the apology is approved by you before it is published
- seek financial compensation for the publication of the defamatory matter.
There are also some practical steps you can take in relation to matters published on social media. The Office of the Children’s eSafety Commissioner has published links to the safety centres for major social media services including Facebook, Snapchat, Instagram and Twitter. The safety centres on these sites can assist you to report abuse or content you find offensive, and will also assist you in having this type of content removed.
Remember that if the material published includes pictures of you in a ‘private act’ (e.g. getting changed, having sex or going to the toilet), you should also contact the police.
Steps to take if you are accused of publishing a defamatory matter
If you receive a notice claiming that you have defamed a person, you should consider whether the matter being complained of is malicious and damaging to that person’s reputation. Consider the context in which the matter was published and whether you may have a defence. You should seek legal advice.
If, on reflection, you consider that you cannot justify the matter and that the matter you published could damage that person’s reputation, you should consider making an ‘offer to make amends’ (s 13 Defamation Act). To fall within the process in the Defamation Act you need to make this offer within 28 days of receiving the Concerns Notice. The offer to make amends needs to:
- be in writing
- clearly refer to the Concerns Notice and state that your response is an offer to make amends
- clearly state which matters you are making an offer for. If there are some matters you do not agree were defamatory, this should be made clear
- set out an expiry date for the offer.
If the Concerns Notice has set out steps the person claiming the defamation requires from you, consider which of these steps you can accept. You do not have to accept all their requests. However, if the matter you published could be defamatory you should consider the following:
- removing any matter from the public domain
- apologising for the defamatory matter
- agreeing not to repeat the matters.
Include a date by which you require a response for example ‘… this offer is capable of being accepted on or before [date]’.
In your response to a Concerns Notice you should mark the letter ‘Without Prejudice Save as to Costs’. This means that if you cannot resolve the dispute and the matter goes to court the contents of the letter cannot be used against you. Section 13 of the Defamation Act also provides protection on this point if you do not include these words. In addition, subject to certain exceptions, evidence of any statement or admission made in connection with making or accepting an offer to make amends is not admissible as evidence in criminal or civil proceedings (s 19 Defamation Act).
Withdrawal of offer to make amends
If you have made an offer to make amends, you may withdraw this offer or make a renewed offer to make amends after the expiry of an agreed period (specified in your offer), provided that the renewed offer is made within 14 days after the earlier offer has been withdrawn (or within a further agreed period), and the renewed offer is a genuine attempt by the publisher to address the matters of concern raised by the aggrieved person about an earlier offer (s 16 Defamation Act).
Failure to accept a reasonable offer
If an offer of amends is made but not accepted, it is a defence to a defamation action if the publisher made an offer to make amends as soon as practicable and was ready and willing to carry out the terms of the offer that was reasonable in the circumstances. In determining whether an offer to make amends is reasonable, a court must have regard to any correction or apology published (s 18 Defamation Act).
Accepting a reasonable offer and ending defamatory action
If the offer to make amends is accepted and the publisher carries out the offer, the person asserting the defamation cannot continue to assert or enforce the defamatory action. It is important that if the matters are resolved the scope of the offer to make amends is clear and agreed between the parties.
Saying sorry is not an admission that you did publish something defamatory.
The Defamation Act provides some protection in relation to making apologies. An apology made by, or on behalf of, a person will not constitute an express or implied admission of fault or liability (s 20 Defamation Act), and it will not be relevant to determining fault or liability in connection with any defamatory matter alleged to have been published.
The purpose of this provision is to encourage apologies without fear that an apology will give rise to a claim that because you apologised you must have published something defamatory.