Defamation actions tend to be time consuming and expensive. Delays in the Courts often mean that an action is decided long after the cause of grievance has been forgotten by all but the parties involved. At the end of a case a Court can only award monetary damages or an injunction, see Remedies. The Court cannot order an apology. An apology is a separate matter, see Apologies. Reliving hurtful events is stressful and the emotional trauma of defamation can seldom be cured by the satisfaction of winning a case or from compensation. Litigation should not therefore be commenced without careful thought and expert legal advice.
Generally, defamation proceedings cannot be commenced without the aggrieved person first issuing the publisher a concerns notice setting out the defamatory imputations [s 12B]. This allows the publisher 28 days to respond with an offer to make amends [s 14(2)(b)] or a request for further particulars, by giving the aggrieved person a written further particulars notice [s 12A(3)]. The aggrieved person has 14 days to provide the further particulars [s 12A(4)]. In the event that the aggrieved person fails to provide the reasonable further particulars within 14 days of receiving the notice for further particulars then it is taken that they have not published a concerns notice. If the aggrieved person provides further particulars after 14 days have already elapsed since giving the concerns notice, then the publisher has a further 14 days to respond with an offer to make amends [s 14(2)]. If the aggrieved person provides further particulars before 14 days have elapsed since giving the concerns notice, the period remains 28 days from the concerns notice [s 14(2)(b)].
The Court may give permission for proceedings to be commenced before the response period has elapsed if the plaintiff satisfies the Court that time limit to issue proceedings is about to expire or if it is just and reasonable to do so [s 12B(3)].
It should be noted that a defamed person may elect to (but is not required to) serve a pre-action document on the publisher prior to the commencement of defamation proceedings under the Uniform Civil Rules 2020 (SA). A pre-action document has additional requirements on both the aggrieved person and publisher to that of the Defamation Act.
Legal advice should be sought before commencing court action.