Making an offer to make amends in a defamation matter
An offer to make amends is a statutory mechanism that creates both a settlement pathway and, if reasonable and not accepted, a complete defence under s 18. It must be in writing, within 28 days of the concerns notice, and meet strict content requirements.
This is an 8-step workflow for making an offer to make amends under ss 13-19 of the Defamation Act 2005 (NSW) and cognate provisions, covering timing, content, and the s 18 defence.
Before you start
- Concerns notice received and read carefully
- Publication, author, and platform details confirmed
- Commercial instructions and reputational tolerance clarified
- Preliminary assessment of defences (truth, honest opinion, contextual truth) completed
The workflow
Check the concerns notice for compliance
Confirm the concerns notice complies with s 12A. If not, consider whether to request further particulars, which may extend time.
Diarise the 28-day window
Diarise the 28-day window from receipt of the concerns notice. An offer is only open to be made within this window (subject to late offers with leave).
Assess imputations and defences
Assess each pleaded imputation, the likely meaning conveyed, and potential defences (justification, contextual truth, honest opinion, qualified privilege, statutory public interest).
Draft the offer content
Draft the offer in writing, identifying the imputations, proposed correction, apology, reasonable expenses, and any compensation. Structure so the offer is reasonable.
Structure correction and apology
Propose a correction and apology proportionate to the original publication (equal prominence where possible), without admission of liability unless instructed.
Address reasonable expenses and compensation
Include reasonable expenses incurred by the aggrieved person to the date of the offer, and, where appropriate, an amount for damages.
Serve the offer and manage response
Serve the offer within the window and manage any acceptance, rejection, or counter-offer. Preserve written records for any subsequent s 18 defence.
Prepare for s 18 reliance at trial
If the offer is rejected, preserve the offer and supporting conduct to rely on the s 18 defence at trial, which requires the offer to have been reasonable in all the circumstances.
What you will have at the end
A reasonable offer to make amends that either settles the matter or provides the foundation for a s 18 defence at trial, consistent with the publisher's commercial and reputational objectives.
Common issues
- Offer made outside the 28-day window without leave
- Correction and apology not offered at equal prominence
- Reasonable expenses underestimated, making the offer unreasonable
- Conditions attached that undermine the offer's reasonableness
- No contemporaneous record of the conduct supporting reasonableness
Run this workflow on a real matter
Quillio drafts the offer, maps each imputation to the response, and structures the correction, apology, and expenses so the offer can anchor a s 18 defence. See /practice-areas/commercial-lawyers or start a free trial.
This workflow is a general guide. Defamation strategy is jurisdiction-specific and highly fact-sensitive.
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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