The contents of a valid offer to make amends are set out in s. 15 of the Defamation Act 2005 (WA), which requires the offer:

• To be in writing: s. 15(1)(a).
• To confirm that the document is an offer to make amends for the purposes of the Defamation Act 2005 (WA): s. 15(1)(b).
• To confirm that if the offer to make amends does not relate to all imputations of concern, state which imputations it relates to: s. 15(1)(c).
• To include an offer to make a reasonable correction of the material which was defamatory: s. 15(1)(d).
• To offer to take reasonable steps to tell persons who may have received the defamatory material that it was defamatory of the aggrieved person: s. 15(1)(e).
• To offer to pay the aggrieved persons reasonable expenses before the issue of the offer, including, costs of considering the offer: s. 15(1)(f).

In addition to the above requirements, the offer to make amends can also include terms of action which the publisher is prepared to take to redress the harm caused by the publication of the defamatory material. Such action may include:

• The publication of an apology to the aggrieved person: s. 15(1)(g)(i).
• An offer to pay compensation in respect of damage sustained (both economic or non-economic): s. 15(g)(ii).
• The inclusion of particulars of the proposed correction or apology or any other action taken before the offer was made: s. 15(g)(iii).

An offer to make amends must be made within 28-days of the date of the receipt of a concerns notice: s. 14(1).

When should I consider making an ‘offer to make amends’?

The ‘offer to make amends’ regime exists as a means to help parties to resolve defamation disputes before they commence. Defamation disputes are costly forms of litigation, irrespective of whether you are a defendant or a plaintiff.

If you do not have the means or the appetite to engage in defamation proceedings, it may be prudent to consider making an offer to make amends as an alternative to such disputation.

Alternatively, it may become apparent after consultation with a defamation lawyer that there are no defences available to you, or, that there are substantive issues in respect of potential defences. If this is the case, you should give strong consideration toward the making of an offer to make amends to avoid or at least mitigate your liability in respect of any claim that may be made against you.   

What are the benefits to me to make an offer to make amends?

Aside from the potential benefit of avoiding costly litigation, there are numerous benefits to making an offer to make amends:

• If the offer is made, accepted and carried out, it is a defence to any prospective proceeding that may be commenced in respect of the relevant material: s. 17.
• If an offer is made, not accepted and proceedings commenced, you may rely on the offer to make amends as a defence to the proceedings if:
• The offer was made as soon as practicable after becoming aware that the material was defamatory;
• The offeror was ready, willing and able to carry out the terms of the offer; and,
• The offer was reasonable.

(s. 18(1) of the Defamation Act 2005 (WA))