Issuing a concerns notice under the uniform Defamation Acts
Since the 2021 stage 1 reforms, a concerns notice is a mandatory pre-action step before commencing defamation proceedings in most jurisdictions. The quality of the imputations pleaded and the particulars of serious harm affect both settlement and litigation outcomes.
This is an 8-step workflow for issuing a concerns notice under s 12A of the Defamation Act 2005 (NSW) and cognate provisions, covering the mandatory pre-action step, imputations, and the offer to make amends framework.
Before you start
- Publication identified with exact wording, date, and URL if online
- Audience and circulation estimated
- Serious harm actual or likely impact documented
- Limitation period (1 year from publication) checked
The workflow
Confirm limitation and standing
Confirm the one-year limitation period under s 14B of the Limitation Act 1969 (NSW) (or cognate provisions) has not expired, and that the client is the person defamed.
Identify publication and publishers
Identify each publisher in the chain, including original author, platform, and re-publishers. For online content, preserve the URL, web archive snapshot, and metadata.
Plead imputations
Draft imputations that are precise, carry a defamatory meaning, and are capable of being the meaning conveyed. Avoid rolled-up imputations.
Particularise serious harm
Particularise the serious harm caused or likely to be caused to reputation, including actual consequences, reach, and evidence of response.
State amends sought
State the amends sought, typically including apology, correction, take-down, costs, and quantifiable damages. Be realistic to preserve offer to make amends mechanics.
Serve concerns notice
Serve the concerns notice on each publisher with supporting material. Keep evidence of service and the published material as at the date of service.
Manage the 28-day amends period
During the 28 days, negotiate, respond to further particulars requests, and consider any offer to make amends on its merits.
Decide whether to commence proceedings
If no reasonable offer is made, consider whether to commence proceedings. Evaluate cost, reputational exposure, and prospects on serious harm and defences.
What you will have at the end
A compliant concerns notice that meets s 12A requirements, preserves bargaining position in the offer to make amends process, and positions the client for settlement or proceedings.
Common issues
- Imputations that are too wide or roll up multiple meanings
- Serious harm insufficiently particularised at the concerns notice stage
- Publishers omitted (for example re-publishers and digital platforms)
- Limitation period miscounted for online publications
- Amends sought that are disproportionate and undermine later negotiation
Run this workflow on a real matter
Quillio drafts the concerns notice, imputations, and serious harm particulars, cross-referenced to the Defamation Act 2005 (NSW) and cognate provisions. See /practice-areas/commercial-lawyers or start a free trial.
This workflow is a general guide. Defamation law varies by jurisdiction; stage 2 reforms remain under consideration in several states.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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