Court considers whether a concerns notice was validly ‘given’ to commence a defamation proceeding

Gadens acted for the successful Defendant in the decision of Khan v Hassan [2023] VCC 852 where the court strictly applied requirements under the Defamation Act 2005 (Vic) (the Act) that must be met when serving a concerns notice to commence a defamation proceeding.

The new requirement to give a valid concerns notice and wait for the expiration of the applicable period for an offer to make amends restricts an aggrieved person’s ability to commence proceedings and endeavours to promote the resolution of disputes before they go to court.

Background

The Plaintiff sued the Defendant for defamation in relation to comments posted by an anonymous user on a Facebook page known as the Bangladeshi Broadsheet. The Defendant was the administrator of the Bangladeshi Broadsheet and the anonymous comments on the post were removed two days after they were posted.

The Defendant submitted that the proceeding was commenced in breach of section 12B and section 44 of the Act as he was not validly given a concerns notice and the proceeding was therefore an abuse of process and on that basis, the court did not have jurisdiction to hear it.

Section 12A and 12B of the Act

Sections 12A and 12B of the Act came into effect on 1 July 2021. Section 12B requires that a concerns notice must be given before a defamation proceeding can commence.

Section 12A requires that a concerns notice must be in writing, specifying the location where the matter in question can be accessed (in this case, the Bangladeshi Broadsheet webpage address), informs the publisher of the defamatory imputations and particularises the harm that the person considers to be ‘serious harm’.

Section 44(1)(a)(ii) of the Act states that a notice may be served on a person by delivering it to the person personally, or by way of section 44(1)(a)(iv) by sending it via email to an email address specified by the person for the giving or service of documents. The Plaintiff’s solicitor found an email address believed to be the Defendant’s email address on the Bangladeshi Broadsheet Facebook page at bangladeshi.broadsheet@gmail.com (Email Address). The Email Address was used to serve the Defendant with the concerns notice.

The Defendant and his solicitor at the time had not specified the Email Address for the service of documents.

The Plaintiff also mailed the concerns notice to the Defendant’s postal address, however, there was an error in the spelling of the Defendant’s street address. The concerns notice was sent to ‘Popular Boulevard’ rather than ‘Poplar Boulevard’.

Conclusion

The court’s findings were that the Defendant had not been given the concerns notice for the purpose of section 12B and section 44 of the Act.

The Plaintiff was found not to have sent the concerns notice to the Defendant by way of his residential or business address last known to the Plaintiff for the purposes of section 44(1)(a)(ii).

The new requirement to give a valid concerns notice and wait for the expiration of the applicable period for an offer to make amends, restricts an aggrieved person’s ability to commence proceedings and endeavours to promote speedy and non-litigious means of resolving disputes about the publication of defamatory material.

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Authored by:

Simon Theodore, Partner
Julia Bell, Lawyer