In Western Australia the law of defamation is governed by the Defamation Act 2005 (WA). In light of the outcome in the Rebel Wilson appeal and the recent Google decision, this article recaps the steps a party can take before a legal proceeding is commenced.
The very nature of defamation means that most people do not want proceedings to end up in court (often referred to as the Barbara Streisand effect because attempts to suppress photographs of her home in Malibu only drew more attention to them). One way to avoid further publicity is to issue a “Concerns Notice”, or an invitation to the publisher of the defamation to make an Offer to Make Amends. The Notice must be in writing, and it must stipulate the defamatory aspersions the affected person is concerned about.
A Concerns Notice is a practical way for an aggrieved person to notify a publisher that they believe they have a claim in defamation without immediately going to the Court for relief. It alerts the publisher to the claim if the publisher was not previously aware that anything they had published could be considered defamatory. Alternatively, if the publisher was aware of the defamatory nature of their publication, the Notice provides an opportunity for them to avoid a long-lasting Court proceeding and provide an Offer to Make Amends.
In turn, the person that spoke or published the allegedly defamatory words has 28 days to respond to a Concerns Notice. They also cannot make an Offer to Make Amends if the aggrieved person has already brought an action against them and they have served a defence.
An Offer to Make Amends must be in writing and is a commonsense way for a publisher of a defamatory material to avoid legal proceedings. The legislation requires that it must include:
- an offer to publish a reasonable correction of the matter in question;
- if the materials in question were given to the publisher by someone else, an offer to take reasonable steps to tell the other person that the material is defamatory of the aggrieved person; and
- an offer to pay the expenses reasonably incurred by the aggrieved person before the Offer to Make Amends was made and while it was being considered.
It may also include an offer to publish an apology.
If no Offer to Make Amends is made, or if the offer made is not appropriate, the fact that the aggrieved person issued a Concerns Notice provides the aggrieved person with some costs protection if the matter does proceed to Court. This is because a failure to make an Offer to Make Amends can give rise to an entitlement to recovery of legal costs on an indemnity basis.
If the aggrieved person accepts the Offer and the publisher carries out its terms, the aggrieved person cannot pursue an action for defamation in regards to that matter.
The use of Concerns Notices and Offers to Make Amends in the context of defamation allows people to address a defamatory publication in a meaningful and timely way without recourse to the justice system.
 Defamation Act 2005 (WA) s 14(2).
 Defamation Act 2005 (WA) s 15.
 Defamation Act 2005 (WA) s 17.