Offers to make amends

 

Once a defamatory statement has been published, and the publisher served with a valid concerns notice, the next stage of the process is for the publisher to (if they desire), to make an offer to make amends. 

Statements or admissions made in connection with the offer are not admissible as evidence in legal proceedings if commenced (Defamation Act 2005 (WA) s 19). 

An offer to make amends must be made within 28 days of receiving a concerns notice (Defamation Act 2005 (WA) s 14(1)). If no concerns notice has been issued, then an offer to make amends may be made any time prior to the defence being served in the proceedings (Defamation Act 2005 (WA) s 14(1)). 

The offer to make amends must: 

  1. Be in writing; 
  2. Say that it is an offer to make amends; 
  3. Say which of the defamatory imputations it relates to; 
  4. Offer to publish a reasonable correction; and 
  5. Offer to pay expenses reasonably incurred by the aggrieved person up until that point, including the expenses incurred in considering the offer (Defamation Act 2005 (WA) s 15). 

The offer to make amends may, but does not have to, include an offer to publish an apology or to pay compensation (Defamation Act 2005 (WA) s 15(1)(g)). It can also be withdrawn at any point before it has been accepted, and a different offer to make amends put forward (Defamation Act 2005 (WA) s 16). 

However, if the offer to make amends is accepted by the aggrieved person, and the publisher carries out the terms of the offer, then the aggrieved person cannot commence proceedings against the publisher with respect to that defamation (Defamation Act 2005 (WA) s 17). It will be a defence to any proceedings. 

If the offer is not accepted, and proceedings are commenced, then the offer to make amends is a defence to the proceedings if:

  1. It was made as soon as practicable after the publisher became aware the publications might be defamatory; 
  2. The publisher was ready and willing to carry out the terms of the offer; and
  3. It was a reasonable offer in all the circumstances (Defamation Act 2005 (WA) s 18(1)). 

A court will consider any matters it thinks relevant when determining whether the offer was reasonable (Defamation Act 2005 (WA) s 18(2)). 

Case Example - Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

In Zoef v Nationwide News Pty Ltd the appellant was a tailor who worked out of his family home. The respondent published an article in The Daily Telegraph titled ‘Tailor’s alter ego as a gunrunner’. The article claimed that the appellant was involved in smuggling weapons into Australia and identified him by name and with a picture. The appellants claim was dismissed based solely on the defence that a reasonable offer to make amends had been rejected. 

The offer to make amends offered to publish a clarification, to pay expenses reasonably incurred up to and including consideration of the offer, and remained open until the first day of the hearing. It also asserted that the respondents were ‘ready and willing to perform the terms of the offer immediately on acceptance’ ([25]). The proposed clarification was also annexed to the offer. 

The appellants’ solicitors accepted the offer ‘subject to clarification’ which required the apology to be in a box 40mm high and two columns wide with the title “Apology” in bold font, and the apology had to be on page 2 or 3, or at the very least the same page as the original article had appeared ([27]). 

The respondents treated this as a counter-offer which they rejected. They stated the apology would be placed in the ‘For the Record’ page as per standard practice at the newspaper. They withdrew the original offer to make amends some 2 and a half months after making it an issued a new, renewed offer ([28], [29]). 

The renewed offer was on the same terms, provided an example of the apology in the ‘For the Record’ section, and also offered compensation of $20,000. This remained open until they filed their defence which stated that the appellant had ‘failed to accept the offer’ ([29], [30]). 

The day before the hearing the appellant’s solicitors attempted to accept the renewed offer but it was not at issue in the proceedings that this acceptance was ineffective as the offer had already been withdrawn ([32]). 

The trial judge found that the respondents were entitled to the defence as they had made an offer as soon as practical, were ready and willing to perform, and the offer itself was reasonable at the time it was made ([55], [56]). 

On appeal, it was accepted that the test of reasonableness is objective. However, it was held that the amount of compensation offered was not reasonable considering the seriousness of the defamatory imputations and the significant hurt they caused the appellant ([76] – [78]). The appeal succeeded and the appellant was awarded $150,000 damages.