A crisis moves faster than litigation
A reputational crisis rarely announces itself in advance. It might begin with a journalist's list of questions, a post that gathers momentum overnight or a complaint that becomes public. Within hours, decisions are being made that can affect a person or business for years.
Legal proceedings have their place, but they are slow by comparison. Effective crisis management means using the law to protect your position while making sure that what you say, and do not say, in the meantime helps rather than harms.
When a journalist calls
If you receive questions before publication, you have an opportunity that may not come again. Take a breath, note the deadline and get advice.
Find out exactly what is being alleged. Ask for the questions in writing if they are not already. A clear, accurate and measured response can correct errors, provide context and, sometimes, persuade a publisher that a story is not supported.
Your response may also matter later. Under the public interest defence in section 29A of the Defamation Act 2005 (NSW), a court can consider whether the publisher sought and published the substance of your side of the story. A considered response helps ensure that question is properly tested.
Avoid off the cuff comments, emotional replies and anything you cannot stand behind. If confidentiality, privacy or legal proceedings are involved, there may be things you should not say at all.
Can a story be stopped?
People often ask whether a publication can be prevented. In Australia, courts are very reluctant to grant injunctions to restrain publication of allegedly defamatory material before trial, because of the importance placed on free speech. Injunctions are more realistic where other rights are involved, such as confidential information, but each case depends on its facts.
So the focus is usually on accuracy and fairness: making sure the publisher has the facts, understands the risks of getting them wrong and has a proper opportunity to correct the record.
After publication
Once a story is out, act quickly but deliberately:
- Preserve the publication and record how far it has spread.
- Identify the meanings that readers would take from it, not just the words used.
- Assess whether the publisher has defences such as truth, honest opinion or public interest.
- Consider a concerns notice, which since the 2021 reforms must be given before defamation proceedings can begin.
- Keep track of time, because the limitation period is generally one year from first publication.
A well drafted concerns notice can achieve a correction, an apology or removal without the cost and exposure of court. Where litigation is necessary, early organisation will make it stronger.
Align the legal and the public response
In a crisis, legal advisers and communications advisers sometimes pull in different directions. One wants to say nothing; the other wants to say everything. The best results come when both work to the same plan.
That plan should set out who speaks, what is said, what is not said and how statements will be checked for legal risk. It should also consider employees, clients, regulators and other stakeholders, who may need to hear from you directly before they read about you elsewhere.
Regulatory and investigative overlap
Some media crises run alongside an inquiry by a regulator or investigative body, such as ASIC or the Independent Commission Against Corruption in New South Wales. In those situations, public statements must be coordinated with the legal position in the investigation. Saying the wrong thing in public can create difficulties in the inquiry, and the reverse is also true.
Look after the long term
A crisis eventually passes, but search results and archived articles can linger. Over time, accurate and positive information about you or your business, published through channels you control, helps ensure that a single story does not become the whole picture.
Get advice early
The most valuable advice in a reputational crisis is usually given in the first day or two. If you are facing media questions, or a story has just broken, you can read about my areas of practice, contact me, or reach Mark O'Brien Legal for a confidential discussion.
General information, not legal advice. This article is general information about the law in New South Wales as at 27 October 2026. It is not legal advice and should not be relied on as such. Laws differ between states and territories and every matter depends on its facts. For advice on your situation, please contact Mark through Mark O'Brien Legal.