Responding to a concerns notice.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

A concerns notice is a formal letter that tells you someone says you have defamed them. Since the 2021 reforms to defamation law, it is not just a courtesy. In most of Australia a person cannot start a defamation case against you at all unless they have given you one first and then waited out a set period. So a concerns notice is both a warning and an opportunity. It is the point at which a dispute can be fixed cheaply, before lawyers and a court get involved.

This note explains what a concerns notice is, what the law now requires, and the choices open to you when you receive one. It is written for people in the arts, a theatre company, a comedian, a reviewer, a festival, a venue, a musician, who publish words or performances that name or point to real people. If you have read our other notes on defamation, this is the practical companion on what to do when a claim actually arrives.

What is a concerns notice?

The uniform Defamation Act 2005, which applies in New South Wales, the Australian Capital Territory and the other states and territories that adopted the 2021 reforms, sets out what a concerns notice must contain. Under section 12A it has to be in writing. It must tell you where the material complained of can be found, for example the web address of a post or the details of a publication. It must set out the defamatory meanings, called imputations, that the person says the material carries about them. And it must explain the harm the person says the material has caused or is likely to cause.

A proper concerns notice should let you see exactly what the person is complaining about, what they say it means, and why they say it has hurt them. If a notice is vague and does not give you enough to work with, section 12A lets you ask for more. Within 14 days of getting the notice you can serve a further particulars notice, which requires the person to spell out their complaint in more detail. They then have 14 days to respond.

Why does a concerns notice matter so much now?

Before 2021 a concerns notice was optional. Now it is the gateway. Section 12B says a person cannot begin defamation proceedings against you unless they have given you a concerns notice and an applicable period has passed, usually 28 days from the date of the notice. The change was meant to push both sides to try to resolve the matter early, and to give a publisher a real chance to fix things before being sued.

For you, that has two effects. First, the notice is real notice. It is not a step that can be skipped on the way to court. Second, the clock is now running. The days after you receive a concerns notice are the window in which your best options are available, and some of them close if you let the time pass. That is why the worst response to a concerns notice is to ignore it.

What are my options when I receive one?

You have several. You can stand by what you published and defend it, if you are confident a defence applies. You can try to resolve the matter by making an offer to make amends, which is the formal settlement path the Act provides. You can take the material down, correct it or apologise, either as part of an offer or on its own. Or you can seek more information first, using the further particulars notice described above, before deciding. These are not all or nothing. A sensible response often combines them, for example taking a post down quickly while you take advice on whether to make a formal offer.

What you should not do is respond in anger, publish again about the same person, or argue the merits in a heated email. Anything you write can end up in evidence, and republishing the same imputation can make things worse. Slow the situation down, keep a copy of exactly what you published and when, and get advice on which of the paths above fits your case.

What is an offer to make amends?

The offer to make amends is the settlement mechanism built into the Act, and it is the reason the timing matters. Under section 14 you can make an offer within 28 days after you receive the concerns notice, and you cannot make one after a defence has been filed. Miss that window and this option is gone. Section 15 sets out what the offer must contain. It has to be in writing, say that it is an offer to make amends under the Act, and include an offer to publish a reasonable correction. It usually also includes an offer to pay the person's reasonable expenses, and it can include an apology and an offer to pay compensation.

The offer to make amends does more than open settlement talks. Section 18 gives it teeth. If you make a reasonable offer, the person refuses it, and you were ready and willing to carry it out, then the offer can be a defence to the case. So a well judged offer either resolves the matter or, if the person unreasonably rejects it, gives you a shield later. Getting the offer right, reasonable in its terms and made in time, is where advice earns its keep.

Should I apologise, and is an apology an admission?

Many people hold off apologising because they fear it will be treated as an admission of guilt. The Act deals with this directly. Section 20 says that an apology does not amount to an admission of fault or liability, and it cannot be used as evidence of liability in the case. So an apology, worded with care, can help take the heat out of a dispute and support an offer to make amends without handing the other side a confession. Even so, the wording of an apology or correction needs thought, because a clumsy one can repeat the imputation or create a fresh problem. Draft it with advice, not on the fly.

What if I want to stand by what I published?

Sometimes the right answer is to defend. If you do, the concerns notice is still useful, because it tells you the imputations you have to meet. The Act provides several defences. Section 25 is the defence of justification, that the imputations are substantially true. Section 26 is contextual truth. Section 31 is honest opinion, which protects opinion, as opposed to fact, that is based on proper material and concerns a matter of public interest. Section 29A is the public interest defence introduced in 2021. Our notes on reviews, criticism and the honest opinion defence and on the serious harm threshold go into these in more detail.

Even where you have a defence, an early and measured response to the concerns notice is worthwhile. It can narrow the dispute, show the other side you are serious and prepared, and in some cases persuade them not to proceed. Standing by a publication and refusing to engage at all are not the same thing, and the second is rarely wise.

What should I do first?

Read the notice properly and work out exactly what material and what imputations are complained of. Keep a copy of what you published and the date. Note the date you received the notice, because the 28 day offer window and the section 12B period both run from around then. Do not republish or post further about the person. Then get advice quickly, while all of your options, including a timely offer to make amends, are still open. A concerns notice handled well in the first few weeks often ends there. One that is left unanswered tends to become a court case.

Frequently asked.

What is a concerns notice in defamation?

It is a written notice, required by section 12A of the Defamation Act 2005, that a person gives before suing for defamation. It must say where the material can be found, set out the defamatory imputations the person says it carries, and explain the harm claimed. Since the 2021 reforms it is the mandatory first step in almost every defamation claim in the jurisdictions that adopted them, including New South Wales and the ACT.

What should I do if I receive a concerns notice?

Do not ignore it and do not republish. Read it carefully to identify the material and imputations complained of, keep a copy of what you published and the date, note when you received the notice, and get advice quickly. Your best options, including a timely offer to make amends, are only available for a limited period after the notice arrives.

How long do I have to respond to a concerns notice?

The person generally cannot start court proceedings until an applicable period, usually 28 days from the notice, has passed under section 12B. More importantly for you, an offer to make amends under section 14 can only be made within 28 days of receiving the notice and before any defence is filed, so the practical deadline for your strongest options is short.

Is an apology an admission of liability in defamation?

No. Section 20 of the Defamation Act 2005 says an apology does not amount to an admission of fault or liability and cannot be used as evidence of liability. A carefully worded apology can help resolve a dispute and support an offer to make amends without being treated as a confession, but the wording needs care so it does not repeat the imputation.

What is an offer to make amends?

It is the settlement mechanism in the Act. Under section 15 it must be in writing, identify itself as an offer to make amends, and include an offer to publish a reasonable correction, and it usually offers to pay reasonable expenses and may include an apology and compensation. Under section 18, a reasonable offer that is refused can become a defence if you were ready and willing to carry it out.

Can I still defend what I published after a concerns notice?

Yes. If you are confident a defence applies, such as justification under section 25, contextual truth under section 26, honest opinion under section 31, or the public interest defence under section 29A, you can stand by the publication. Even then, a measured early response to the notice can narrow the dispute or persuade the other side not to proceed.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 30 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

← Back to Entertainment & Arts Law