DEFAMATION ACT 2005 - SECT 12 Application of Division

DEFAMATION ACT 2005 - SECT 12

    (1)     This Division applies if a person (the publisher ) publishes matter (the matter in question ) that is, or may be, defamatory of another person (the  aggrieved person ).

    (2)     The provisions of this Division may be used instead of the provisions of any rules of court or any other law in relation to payment into court or offers of compromise.

    (3)     Nothing in this Division prevents a publisher or aggrieved person from making or accepting a settlement offer in relation to the publication of the matter in question otherwise than in accordance with the provisions of this Division.

S. 12A inserted by No. 35/2020 s. 23.

        12A         Concerns notices

    (1)     For the purpose of this Act, a notice is a concerns notice if—

        (a)     the notice—

              (i)     is in writing; and

              (ii)     specifies the location where the matter in question can be accessed (for example, a webpage address); and

              (iii)     informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern ); and

              (iv)     informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question; and

              (v)     for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and

        (b)     a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Note

Section 12B requires a concerns notice to be given before a proceeding for defamation can be commenced.

    (2)     For the avoidance of doubt, a document that is required to be filed or lodged to commence a defamation proceeding cannot be used as a concerns notice.

    (3)     If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice ) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.

    (4)     An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.

    (5)     An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

S. 12B inserted by No. 35/2020 s. 23.

        12B         Defamation proceeding cannot be commenced without concerns notice

    (1)     An aggrieved person cannot commence a defamation proceeding unless—

        (a)     the person has given the proposed defendant a concerns notice in respect of the matter concerned; and

        (b)     the imputations to be relied on by the person in the proposed proceeding were particularised in the concerns notice; and

        (c)     the applicable period for an offer to make amends has elapsed.

    (2)     Subsection (1)(b) does not prevent reliance on—

        (a)     some, but not all, of the imputations particularised in a concerns notice; or

        (b)     imputations that are substantially the same as those particularised in a concerns notice.

    (3)     The court may grant leave for a proceeding to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

        (a)     the commencement of a proceeding after the end of the applicable period for an offer to make amends contravenes the limitation law; or

        (b)     it is just and reasonable to grant leave.

    (4)     The commencement of a proceeding contravenes the limitation law for the purposes of subsection (3)(a) if the proceeding could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.

    (5)     In this section—

"limitation law" means the Limitation of Actions Act 1958 .