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While making amends or offering an apology are not rights of a plaintiff, they are a legitimate means for a defendant to end litigation before it reaches the court. The offering and acceptance of amends means that an aggrieved person cannot assert, continue or enforce an action for defamation (s17). Amends are often called settlement offers. An apology, under section 20, does not constitute admission of fault, and while it does not affect the right to assert, continue or enforce an action for defamation, an apology is not admissible as proof of fault or liability in court (s20(2)).

Amends/Settlement Offers

Amends can be made generally, or in relation to specific defamatory imputations (s13). If two or more people published the matter in question, an offer of amends by one does not affect the liability of others (s13(3)).

Amends can be offered within 28 days of a publisher having notice from the aggrieved person; or if a defence has been served in the matter (s14). A concerns notice must be in writing, and indicate the defamatory imputations considered to be a matter in question (s14(2)). A publisher may request further particulars where an aggrieved person has failed to provide details of the defamatory imputations.

They have 14 days to give those further particulars (s14(4)).

Offers of amends must state the particular defamatory imputations to which it is directed; include an offer to publish a reasonable correction; include an offer to pay reasonable expenses incurred by the aggrieved person before the offer was made, and in considering the offer (see: s15).

Apologies

Apologies will bear as a factor in mitigating damages (s38(1)(a)). They cannot be submitted as evidence of admission of fault or liability by the defendant, to the court (s20(2)).

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