When a person or business becomes involved in a public dispute, the legal issues are only part of the problem. False or misleading statements may have serious and long-term effects on reputations and livelihoods.

A dispute may begin with a letter of demand, a social media post, a media article, a Google review or the commencement of proceedings. However, once allegations are published or repeated, the consequences can extend well beyond the legal merits of the claim.

Reputation, commercial relationships, client confidence and public perception can all be affected.

For that reason, dealing with defamation actions requires a careful strategy from the outset. A party should not only ask, “What is my legal position?” They should also ask, “What will happen if this becomes public?”, “How should we respond?”, and “Could our response make the situation worse?”

Reputation disputes move quickly

Defamation disputes are often urgent because reputational harm can occur immediately.

A defamatory publication may be read, shared, copied, forwarded or republished before legal correspondence is even prepared. In commercial disputes, allegations can spread quickly between clients, customers, suppliers, employees, investors and industry participants.

This is particularly so where the publication occurs online. A social media post, online review or digital article can continue to be accessed long after it is first published. Even if the material is later removed, the damage may already have been done.

That is why early advice is important. The first response can shape the entire dispute.

A legal response should not be prepared in isolation

In many cases, the immediate instinct is to send a forceful legal letter. That may be appropriate. However, it should not be done without considering the broader consequences.

A legal letter may be relied upon later. It may be forwarded to third parties. It may be provided to journalists. It may provoke further publication. It may also become part of the factual background if proceedings are commenced.

The same applies to public statements. A statement made to clients, employees, media outlets or the public may assist in correcting the record, but it may also create legal risk if it is inaccurate, excessive or inconsistent with the position later advanced in proceedings.

The takedown notice and the communications strategy need to be aligned.

Concerns Notices

In defamation matters, a concerns notice is the first step required pursuant to the Defamation Act  2005 (NSW) before proceedings are commenced.

A concerns notice identifies the publication complained of, the defamatory imputations relied upon, and the serious harm said to have been caused, or likely to be caused, by the publication.

It should not be treated as a mere procedural step.

The contents of a concerns notice may later become central to the dispute. The publication, imputations and harm identified in the notice may influence the way any later proceedings are pleaded. Careful consideration should therefore be given to the precise words published, the context, the audience, the meanings conveyed, the available evidence and the outcome sought.

A well prepared concerns notice can create pressure for removal, correction, apology, undertakings or compensation. A poorly prepared notice can weaken the claim before proceedings are even commenced.

Implication of commencing proceedings

Court proceedings are not always confined to the courtroom.

Pleadings, affidavits, evidence and judgments may become publicly accessible. Journalists may report on allegations before they are determined. Competitors, customers or industry participants may form views based on incomplete information.

Even where a party ultimately succeeds, the process itself can cause reputational damage.

This does not mean that proceedings should be avoided at all costs. In some cases, litigation is necessary to vindicate reputation, restrain further publication or recover compensation. However, the decision to litigate should be made with a clear understanding of both the legal and reputational consequences.

Public statements need discipline

There may be circumstances where a public statement is appropriate. For example, a business may need to reassure customers, employees or commercial partners. An individual may need to correct a false public narrative. A company may need to respond to media enquiries.

However, any public statement should be carefully drafted.

It should not undermine the legal position. It should not repeat defamatory material unnecessarily. It should not overstate the facts. It should not create new allegations that may give rise to a separate claim. It should also be consistent with the position being taken in correspondence or proceedings.

In reputation disputes, tone matters. A response that is too aggressive, emotional or imprecise may escalate the dispute and increase legal risk.

Businesses need to protect commercial relationships

For businesses, defamation and reputation disputes often have commercial consequences.

A false allegation may affect client confidence, tender opportunities, supplier relationships, employee morale or goodwill. A damaging review or online post may influence potential customers. A media report may create uncertainty around a business or its leadership.

The legal response should therefore be directed to the commercial objective.

In some cases, the priority may be urgent removal. In others, it may be a correction, apology, undertaking not to republish, private settlement, compensation, or a carefully managed public response.

A strategy that focuses only on legal remedies may overlook the commercial damage that needs to be contained.

Defending a claim also requires strategy

The same principles apply where a person or business is accused of defamation.

Receiving a concerns notice does not mean that the claim will succeed. There may be issues about whether the publication identifies the claimant, whether the alleged meanings are conveyed, whether serious harm can be established, or whether a defence is available.

However, the response still needs to be considered carefully.

An early offer to make amends may be appropriate in some cases. In others, the claim should be resisted. Sometimes further particulars should be sought. Sometimes the best outcome is a negotiated resolution that avoids further publication and cost.

The key is to assess the legal risk, commercial risk and reputational risk together.

A practical approach to defamation and reputation disputes

At Paradise Charnock Hing, we approach defamation and reputation disputes by considering the whole problem, not only the legal cause of action.

This includes:

1. the publication complained of;
2. the defamatory meanings said to arise;
3. the evidence of harm;
4. the identity of the publisher and audience;
5. the prospects of removal or correction;
6. the available defences;
7. the commercial and reputational consequences; and
8. whether the matter can be resolved without the need for commencing proceedings.

Defamation disputes require speed, judgment and precision. The right strategy at the outset can reduce harm, preserve options and improve the prospects of a commercial outcome.

Key takeaway

In defamation and reputation disputes, the first response matters.

A takedown notice, concerns notice, legal letter, public statement or media response can all affect the direction of the dispute. Legal strategy should therefore be developed with a clear understanding of the reputational and commercial consequences.

If your reputation has been damaged, or if you have received a concerns notice, early legal advice can help you respond strategically and avoid steps that may make the dispute worse.