Defamation and Media Law Journal 5: Offer to Make Amends

One of the innovations with the introduction of the Defamation Act 2005 has been the offer to make amends regime. 

It enables the publisher of defamatory material to make a formal offer of amends at an early stage and thereby limit or in some instances eliminate a claim of defamation.  Pursuant to the provisions of Part 3 of the Act where an individual is aggrieved by a publication, the publisher may at an early stage make an offer of amends.  The Act prescribes that such offer must be made either within 28 days of receipt of a formal complaint from an aggrieved party (known as a “concerns notice”) or alternatively before filing a defence to legal proceedings issued by the aggrieved party.

Prerequisites

The Act specifies that an offer to make amends must contain a number of essential prerequisites namely:-

1. it must be in writing and readily identifiable as an offer to make amends;
2. if it is limited to particular defamatory imputations then those imputations must be specified;
3. it must include an offer to publish a reasonable correction; and
4. it must contain an offer to pay reasonable expenses incurred by the aggrieved party.

An offer of amends may also include an offer to pay compensation.

Apology

The early publication of an apology can be taken into consideration in mitigation of any award of damages contemplated by a court.  However, in order for an apology to be effective, it must be expressed in clear and unequivocal terms.

It is provided in the Defamation Act 2005 that evidence of the publication of an apology is not able to be admitted in evidence in a defamation action as an admission of fault or liability.

If you would like more information regarding defamation issues or are in need of legal advice, please contact us today.

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