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Concerns notices and time limits in defamation

Under Queensland’s Defamation Act, and as the SA Law Handbook describes for South Australia, the person who says they were defamed must give the publisher a written concerns notice before proceedings can begin, then wait out the period the publisher has for an offer to make amends, which under Queensland’s Act is generally 28 days. In Queensland and South Australia the claim itself must generally begin within 1 year of publication, and for something online that year runs from the day it was first uploaded or sent.

General information about defamation procedure, not legal advice, and no view on whether to send or answer a notice. The official places to check are your state or territory’s legal aid service and its Defamation and limitation Acts.

A cream envelope closed with a red wax seal, beside a wooden seal stamp and a stick of sealing wax
A sealed letter. Under Queensland’s Act, a concerns notice must be in writing. Photo by sik-life on Pixabay

What a concerns notice must contain

Section 12A of Queensland’s Defamation Act sets out what makes a notice a concerns notice. In short, the notice:

  • is in writing;
  • says where the matter can be accessed, for example a webpage address;
  • tells the publisher the defamatory imputations the person considers it carries about them;
  • tells the publisher the harm the person considers to be serious harm to their reputation;
  • for an excluded corporation, also tells the publisher the financial loss it considers to be serious financial loss;
  • comes with a copy of the matter, if that is practicable.

The SA Law Handbook lists the same contents for South Australia, under section 12A of the SA Act. Queensland’s Act adds that a document filed to start proceedings cannot be used as a concerns notice.

The publisher’s time to respond

Queensland’s Act, with the SA Law Handbook describing the same periods for South Australia:

  1. The notice is givenThe publisher now has the applicable period for an offer to make amends.
  2. If details are missingWhere the notice does not adequately particularise the location, the imputations, the harm or the financial loss, the publisher may give a written further particulars notice. The person then has 14 days, or a longer period both agree, to provide reasonable further particulars; if they do not, they are taken not to have given a concerns notice at all.
  3. 28 days, or 14The applicable period is 28 days from the concerns notice. If the further particulars arrived after 14 days had already passed since the notice, it is 14 days from when the publisher received them.
  4. Then, proceedingsOnly once that period has passed may proceedings begin, relying on imputations the notice particularised, some of them, or ones substantially the same.

A court may give leave to begin sooner, but only if the person satisfies it that waiting would breach the limitation law, or that leave is just and reasonable.

The one-year limit

“An action on a cause of action for defamation must not be brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.”

“date of the publication, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.”

Limitation of Actions Act 1974 (Qld), section 10AA, Queensland Legislation

The SA Law Handbook gives the same 1-year rule for South Australia, under section 37 of the Limitation of Actions Act 1936 (SA), with the same first-upload meaning for electronic publications.

A notice given late in the year

In Queensland, if a concerns notice is given within the period of 56 days before the year expires, the period is extended by 56 days minus any days remaining after the day the notice was given. The SA Law Handbook describes the same extension for South Australia.

The Act’s own example reads: “Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days.”

Reposts and the first publication

Under the single publication rule, when the first publisher or an associate later publishes matter that is substantially the same, the time for a claim about the later publication runs from the date of the first one. That rule does not apply where the manner of the later publication is materially different.

Up to three years, by order

A Queensland court may extend the period to up to 3 years from publication if the person satisfies it that it is just and reasonable to let the action proceed, and may do so even after the year has ended. The SA Law Handbook describes the same 3-year power for South Australia.

When a notice arrives

A business can be on either side of a concerns notice. Victoria Legal Aid’s guidance covers both: “Get legal advice if you are thinking about suing for defamation or if you get a letter demanding that you ‘offer to make amends’ for defaming someone.”