An offer to make amends is a type of defence available under Australian Defamation Law. It involves a publisher making an offer to make amends in relation to a publication generally or in relation to a particular defamatory imputation, that the publisher accepts that the material in question carries. Thorough and detailed legal advice from a Defamation Lawyer can assist you in understanding the process and actions required in an offer to make amends.
There are various components to an offer to make amends. These includes that the offer must be in writing in compliance with the legislation, if it is of a limited nature to certain particular defamatory imputations it must state so, it must include an offer to publish a reasonable correction of the publication, if material containing the publication has been given to someone else by the publisher or with the publisher’s knowledge, the offer must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the complainant. Furthermore, the offer must include an offer to pay the expenses reasonably incurred by the complainant before the offer was made and also of considering the offer. Also the offer may include any other kind of offer or particulars of any other action taken by the publisher to redress the harm sustained including (but not limited to):an offer to publish or join in publishing an apology; an offer to pay compensation for any economic or non-economic loss, including an offer to pay a stated amount; an agreed amount; an amount determined by an arbitrator as appointed or agreed; or an amount determined by a court or the particulars of any correction or apology made, or action taken, before the date of the offer. Comprehensive and detailed legal advice from a Defamation Lawyer can assist you in understanding the intricacies and details in this area of law.
An offer of amends must be made within 28 days of the publisher being notified in writing, by what is described as a Concerns Notice, of the defamatory imputations alleged or before a defence has been served in an action brought by the complainant. A publisher may respond to this notification in writing requesting further particulars of the imputations in question and the complainant must provide this information within 14 days or within an agreed period.
An offer to make amends is taken to have been made without prejudice, unless the offer otherwise provides. A statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible in either criminal or civil proceedings, except in order to determine an issue advising under the provisions relating to offers or costs in defamation proceedings. Defamation law provides that the provisions concerning offers of amends 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. An offer to make amends may be withdrawn before it is accepted by notice in writing but a fresh offer may be made. The time limits, however, referred to above do not prevent the making of a fresh offer that is not in the same terms as the withdrawn offer if it represents a genuine attempt to address matters of concern raised by the complainant about the withdrawn offer and is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the parties.
If an offer to make amends is not accepted, it is a defence to an action in relation to the publication if the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; if at any time before the trial the publisher was ready and willing, on acceptance of the offer, to carry out its terms; and if in all the circumstances the offer was reasonable. Two factors that are to be taken into account by the court in considering whether the offer was reasonable are the prominence of any correction or apology published in comparison with the original publication and the lapse of time between the original publication and the correction or apology. One other factor that the court may have regard to is whether the complainant refused to accept an offer that was limited to any particular defamatory imputations because he or she did not agree about the imputations that the publication carried. Being properly advised by a Defamation Lawyer could be useful in an offer to make amends matter.
If an offer to make amends is accepted, and the publisher carries out its terms, the complainant cannot maintain an action in relation to the publication even if the offer was limited to a particular defamatory imputation. In these circumstances the court may – but need not – order the publisher to pay the expenses reasonably incurred by the complainant as a result of accepting the offer, including any legal costs on an indemnity basis.
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