My article last month on Facebook shaming generated feedback by readers wishing to know what to do if they defamed, or might have defamed, someone on Facebook or online.  They wondered if anything could be done to eliminate or reduce the risk of legal liability.

If the aggrieved person raises an objection about the published words, then the words should be removed and the person informed of the date and time of removal.  This step alone might appease the person, but it might not depending on the seriousness of the defamation and the extent of publication (the number of likes and shares on Facebook, for example)

But what if the aggrieved person presses for further redress, like a retraction, apology or compensation? This is when it becomes necessary to consider the statutory regime under Australian defamation legislation to make amends, especially if a solicitor for the aggrieved person becomes involved. This regime facilitates the resolution of defamation claims without recourse to legal action, but it is technical.  An offer must comply with certain requirements and be made within time limits to be valid.  And to be effectual in resisting a damages claim for defamation, the offer should address other factors, like compensation, which must be carefully considered and evaluated.

An offer to make amends must be in writing and identified as an offer under the regime.  It must contain an offer to publish a reasonable correction.  Although the wording of the correction does not have to be set out in the offer, it would be unwise to omit it.  It must also contain an offer to pay expenses reasonably incurred before the offer was made and the expenses involved in considering the offer.  These prescriptions must be observed in order for the offer to be valid so care must be taken to ensure that the offer is compliant.

An offer must be made within 28 days after receiving a written complaint about the imputations (meanings) which the aggrieved person says are or may be carried about him or her by the offending publication.  If a defamation claim is issued in Court without a prior written complaint (which would be unusual), the offer must be made before a defence is filed.  These time limits are strict.

Our defamation legislation says that a correction and an apology (if an apology is offered or given) is not admissible in a Court as an admission of fault or liability.

An offer to make amends must be open for a reasonable time to allow the aggrieved person to consider it and obtain legal advice.  An offer can be withdrawn.  A renewed offer can be made if it is not in the same terms as the withdrawn offer, provided the renewed offer is a genuine attempt to address matters raised by the aggrieved person about the withdrawn offer and the renewed offer is made within 14 days after the withdrawal of the withdrawn offer.

If a valid offer to make amends is made, and it is not accepted, it can provide a defence to an action for defamation over the words complained about, provided certain statutory conditions are satisfied.  Firstly, the offer must have been made as soon as practicable after becoming aware that the matter complained of is or may be defamatory.  Awareness does not arise only if the aggrieved person complains.  Second, the publisher must have been ready and willing, if the offer was accepted, to carry out the terms of the offer. This should not be hard to demonstrate. Third and most importantly, in all the circumstances the offer must have been reasonable, in an objective sense, at the time that it was made.

Making a “reasonable” offer in an objective sense is not easily accomplished without good legal advice, after careful attention to all the circumstances.  The seriousness and extent of the publication are touchstones whether an offer to make amends is reasonable in its ability to redress the hurt and harm done by the publication in question.  As an offer to make amends must include an offer to publish a reasonable correction of the matter in question, the nature and extent of the correction will be a relevant factor to measure the reasonableness of the offer.  So a correction must be formulated with care.

The location and timing of the publication of a correction or an apology are considerations which must be considered by a Court on an objective assessment of the reasonableness of an offer to make amends.  Of course if no correction or apology is published adequately or at all, perhaps because an offer to make amends was not accepted by the aggrieved person, then this factor will not potentially work to the publisher’s advantage.

If the offer to make amends includes (although it is not obligatory that it does so) an offer to pay compensation to the aggrieved person, the adequacy of the compensation by comparison to the seriousness of the defamatory meanings conveyed by the matter complained of will be relevant to the assessment of the offer as reasonable or not. Invariably, some payment will be required to repair the hurt suffered by the aggrieved person so it is hard to see how an offer to make amends without inclusion of a monetary payment would be reasonable.  The difficulty is working out a figure which is neither too little nor too much.  The adequacy of a monetary offer is not evaluated, however, in isolation, but by reference to the reasonableness of the correction that must be included in the offer.  The mandatory components of the offer to make amends are aimed at providing the aggrieved person with a measure of reparation which in combination with non-mandatory factors, such as an offer of an apology or to pay compensation, go to the question of whether the offer to make amends was reasonable.

If an aggrieved person objects that a particular word or combination of words carries a meaning that is or may be defamatory of that person, the publisher must take the complaint seriously and quickly obtain legal advice about the steps available to manage the risk of legal liability for defamation.

14 November 2018

© 2018 Michael Mackinnon, Solicitor & Independent Counsel