In this alert, Partner Brett Bolton, Senior Associate Samantha Clements and Solicitor Ellie Neuendorf discuss the requirements of a Concerns Notice, how to respond to a negative review and what you should know about the new “serious harm” test.

A negative or vexatious review can have a damaging impact on a business’ reputation. Early last year Brett Bolton and Samantha Clements delivered a webinar to business leaders regarding safeguarding businesses against defamatory content on social media. They also provided an update on the status of the Council of Attorneys General’s (COAG) national review of the Model Defamation Provisions in Australia (MDPs).

On 1 July 2021, amendments to the MDPs came into effect in Queensland, New South Wales, Victoria and South Australia (with other jurisdictions to soon follow).

These amendments include the introduction of a mandatory Concerns Notice regime and a “serious harm” test. They are important for businesses to be aware of when considering their options in dealing with negative or defamatory reviews, including whether to commence defamation proceedings. The introduction of the serious harm test is a major change and encourages the early resolution of defamation proceedings. It can also reduce the number of frivolous claims clogging up the courts where no “serious harm” has been suffered.

Responding to negative reviews with a Concerns Notice

If you or your business receive a problematic review and want it removed, the first step would usually be to issue what is called a “Concerns Notice” to the person who published the review.

Following the amendments made to the Defamation Act 2005 (Qld) (Act) in July 2021 (as mentioned above) an aggrieved person must now issue a Concerns Notice to the publisher of the defamatory review before commencing Court proceedings for defamation. Under the previous regime, it was not mandatory to issue a Concerns Notice prior to bringing a claim.

What is a Concerns Notice?

A Concerns Notice needs to be carefully drafted to ensure it complies with the new regime. It must:

  • be in writing;
  • specify the location where the defamatory matter in question can be accessed (i.e. a Google link if that is where the offending review was posted) and if practicable, provide a copy of the review;
  • adequately set out the defamatory imputations (i.e. defamatory meanings) that the business or person considers were conveyed by the review;
  • inform the publisher of the “serious” harm (more about that below) that the business considers has been done to its reputation;
  • if the business is conducted by a company which is an “excluded corporation” under the Act (i.e not-for-profit companies and companies with fewer than 10 employees), inform the publisher of the serious financial loss that the company considers has been caused, or is likely to be caused, by the publication of the review.

Offer to make amends

On receipt of a Concerns Notice, the recipient has 28 days to decide whether to make an “offer of amends” under the Act, before the aggrieved party can commence proceedings. The 28-day period may be extended where a recipient makes a reasonable request for further information.

Although an offer to make amends is optional, if made, it must include the following:

  • an offer to publish a reasonable correction; and
  • an offer to pay the expenses reasonably incurred by the business before the offer was made.

The offer to make amends can also include other matters (e.g. an offer to pay damages, an offer to provide a written undertaking not to republish the defamatory material again).

Introduction of the “serious harm” threshold

If defamation proceedings are ultimately commenced, the amendments to the Act now require a person to satisfy the “serious harm” test, i.e., demonstrate that the defamatory publication has caused, or is likely to cause, serious harm to the reputation of the aggrieved person. An excluded corporation suing for defamation must also prove that the publication has caused, or is likely to cause, serious financial loss.

The onus is on the aggrieved person to prove “serious harm” in any proceedings. The Act does not define “serious harm” and there are very few decided Australian cases at the moment which give any guidance on its meaning.

In February this year, the New South Wales Supreme Court considered the serious harm threshold for the first time in Australia in Newman v Whittington [2022] NSWSC 249. Ms Newman commenced defamation proceedings against Mr Whittington in relation to 27 defamatory publications made on Facebook. Given that some of those publications were made after 1 July 2021 (when the amendments came into effect), Ms Newman needed to overcome the serious harm threshold. Although Ms Newman was not able to overcome this test (due to the way her case was pleaded), the Court did look to court decisions in the UK for guidance, given that the UK introduced a similar “serious harm” test into its defamation laws in 2013. We expect this trend will continue.

While we will have to wait and see how the Australian case law develops, it is clear at this relatively early stage, that the court will closely examine the facts and circumstances of each matter and the impact of the publication. It seems that the former approach - where the court considered the harm that might be ‘inferred’ from the words used within the publication and the generally understood meanings of those words – will no longer be followed.

Where to from here?

It is very important that any Concerns Notice issued complies with the new legislative provisions, as a poorly drafted notice may not achieve the desired outcome and could also adversely impact on the success of any defamation proceedings which are ultimately commenced.

The Stage 2 review of the MDPs is also currently underway and focuses on the liability of digital platforms for online defamatory content. We will keep you informed of Stage 2 developments and how it can impact the way your business publishes content on social media and other digital platforms.