If you are threatened with a defamation claim or you receive what is known as a Defamation Act "concerns notice", there are certain steps that ought to be taken particularly if you are of the view that you will have any difficulty in proving the truth or otherwise defending what has been said or what has been published.
1. Seek legal advice prior to publication
It should always be remembered that in the absence of a viable counterclaim, the very best that a defendant to a defamation action will ever achieve is to recover some portion of the legal costs incurred in defending any such claim. Therefore, if it is intended to publish anything of a controversial nature which could potentially give rise to a defamation claim then it is always recommended that a suitably qualified lawyer be engaged to provide pre-publication advice. Although such advice is no guarantee that a claim will not rise, it might at least place you in a position to better defend any claim that might arise.
2. Seek legal advice after publication
In the event that a letter of demand or concerns notice is received following publication, it is always advisable to retain a lawyer to advise in respect of your legal position. Any costs incurred in this regard potentially could save you significant expense in the long run. There may be arguments that can be raised in defence of such a claim. Alternatively, your legal representatives will be able to guide you in seeking to resolve the matter through appropriate negotiations.
3. Restrict publication of offending material
If the threat of legal action pertains to a matter published on social media or elsewhere on the Internet then generally speaking every effort ought to be made to immediately take it down or remove the same. Generally speaking, this will restrict publication and reduce any potential damages claim.
4. Provide an apology
Although it is often an unpalatable option, the publication of an appropriate apology and retraction will generally help to placate a would-be claimant and thereby reduce the likelihood of a claim being made. The Defamation Act specifically provides that a publication of an apology "does not constitute an express or implied admission of fault or liability". The Act further provides that evidence of an apology "is not admissible in any civil proceedings as evidence of fault or liability".
5. Make an offer to make amends
The Defamation Act makes provision for a publisher of a defamatory matter to make an offer to make amends. An offer to settle a defamation action can, of course, be made at any time even up until trial. However, a formal offer to make amends pursuant to the Act must be made either within 28 days of receipt of a concerns notice or in the absence of such a notice, prior to the service of any defence to such a claim. Offers of amends made pursuant to the Act must be in writing and must be specified as an offer of amends. Further, it must include an offer to publish a reasonable correction (i.e. an apology) and it must include an offer to pay the expenses reasonably incurred by the aggrieved party before the offer was made and any costs reasonably incurred in considering the offer itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
