What is a defamation concerns notice?
A concerns notice is a written notice an aggrieved person must serve on a proposed defendant before commencing defamation proceedings under section 12A of the Defamation Act 2005 (NSW) (and equivalents in other states after the 2021 uniform reforms). It must identify the publication, set out the imputations alleged, and identify the harm. The recipient has 28 days to make an offer to make amends. A claim cannot be commenced without a valid concerns notice.
What must be in a concerns notice
Under section 12A of the Defamation Act 2005 (NSW) (and equivalents), a concerns notice must: be in writing; inform the publisher of the defamatory matter; specify where the matter can be accessed; specify each imputation alleged to be conveyed; and include particulars of any serious harm suffered. A defective concerns notice cannot support later proceedings.
The 28-day offer period
From service of a compliant concerns notice, the publisher has 28 days to make a written offer to make amends under section 14. A reasonable offer must include: publication of a correction; removal of the matter; an apology; compensation for economic loss; and reasonable costs. Refusing a reasonable offer exposes the publisher to costs on indemnity basis and caps the plaintiff's damages.
Serious harm element
Following the 2021 Stage 1 reforms, section 10A of the Defamation Act 2005 (NSW) requires the plaintiff to prove the publication has caused or is likely to cause "serious harm" to reputation. For corporations with more than 10 employees the test is "serious financial loss". This is a threshold that must be met before a claim can proceed.
How I draft concerns notices
I draft concerns notices that comply with section 12A, including proper imputation drafting (the most technically demanding part), serious harm pleading, and remedy specification. I also draft offers to make amends under section 14 when acting for publishers.
Common issues
- Imputation drafting is the most common technical failure — imputations must be specific and serious
- A plaintiff cannot issue proceedings for at least 28 days after the notice — diary carefully
- Publisher's offer to make amends should be generous — it caps liability and shifts costs risk
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