Apologies, corrections and retractions: what they are worth

Most people who have been defamed want two things above all: a correction and an apology. Many publishers would rather apologise than litigate, provided they can do so without conceding liability. The uniform defamation legislation accommodates both sides. It protects a publisher who apologises, rewards a publisher who corrects promptly and prominently, and gives a complainant a structured way of asking for both. What it does not do is empower a court to order anyone to say sorry.

This article explains the legal status of an apology and the differences between an apology, a correction, a retraction and a clarification. It then looks at how the courts measure the worth of each when assessing damages or an offer to make amends, and at the practical issues that arise when wording, placement and platform are negotiated.

An apology is not an admission

Section 20 of the Defamation Act 2005 provides that an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published does not constitute an express or implied admission of fault or liability, and is not relevant to the determination of fault or liability. Evidence of the apology is not admissible in any civil proceedings as evidence of fault or liability.¹ The section removes the historical reason publishers refused to apologise: fear that the apology would be used against them at trial.

The protection has limits that are easy to overlook. The section protects an “apology” but does not define the term, and the courts have not yet had to decide how far it extends to statements of fact that accompany an expression of regret. A publisher should assume that a factual concession going beyond the apology itself (“we have now confirmed that the allegation was false”) may not be protected, and draft accordingly. Section 20(3) also makes clear that the section does not limit s 38, so the apology remains admissible in mitigation of damages.¹ Statements made in connection with the making or acceptance of an offer to make amends have a separate and broader protection under s 19.²

Apology, correction, retraction and clarification

These words are often used interchangeably but they describe different things, and a settlement or offer should be precise about which is meant.

A correction states that something published was wrong and sets out the accurate position. The Act treats it as the minimum content of an offer to make amends: every offer must include an offer to publish “a reasonable correction of, or a clarification of or additional information about, the matter in question”.³ A correction withdraws the factual sting without necessarily expressing regret.

A retraction is a withdrawal of the statement itself. The publisher says, in effect, that it no longer stands by the allegation, whether or not it also asserts the contrary. It removes the suggestion that the publisher continues to believe the allegation is true.

A clarification or additional information supplements the original publication without withdrawing it. It is appropriate where the original was literally accurate but misleading by omission or emphasis, or where the complainant’s response was not included. It is the least a publisher can offer under s 15(1)(d) and will often be inadequate on its own for a serious allegation.

An apology expresses regret for the publication and, in its fullest form, for the hurt it caused. An apology is not a mandatory component of an offer to make amends, but it may be included,⁴ and its absence is something a court may weigh when deciding whether an offer was reasonable.⁵ The strongest form combines all of these: a statement that the allegation was wrong, that it is withdrawn, and that the publisher is sorry for publishing it.

Courts read the words closely. In McVicker v Australian Broadcasting Corporation, the Queensland Court of Appeal considered an editor’s note stating that the broadcaster “did not adopt or endorse” the claims reported, “did not intend to make any adverse suggestion” about the complainant and apologised “should any such suggestion have been unintentionally conveyed”. The court accepted that this was not a full and frank withdrawal and contained no clear statement of regret, but held it was nonetheless a sufficient apology in the circumstances, read together with the substantive modifications made to the article.⁶ A qualified apology of this kind may be enough where the imputations are ambiguous and the harm limited; it would not be enough for a grave and unambiguous allegation.

A court cannot order an apology

At the end of a defamation trial the court can award damages and, in appropriate cases, grant an injunction. It cannot order the defendant to apologise or to publish a correction. The point was put plainly by Young J in Summertime Holdings Pty Ltd v Environmental Defender’s Office Ltd: the common law court does not compel apologies but takes into account whether an apology was offered when assessing damages, and even where a party has contractually agreed to apologise it will be an exceptional case in which equity compels the words to be uttered.⁷ The Defamation Act did not change this. Unlike some other statutes, it contains no power to make correction or apology orders.

This has two practical consequences. First, an apology or correction can only be obtained by agreement, which is why the concerns notice and offer to make amends process matters so much: it is the structured negotiation through which most apologies are secured. Second, the enforceability of an agreed apology is not entirely straightforward. In Vass v Nationwide News Pty Ltd, Parker J observed that s 17 of the Act, which bars the complainant’s action once the publisher carries out the terms of an accepted offer, provides no express mechanism for forcing the publisher to perform those terms, and left open whether general contractual principles of specific performance apply to an agreement arising from an accepted offer to make amends.⁸ Where an apology is agreed as part of a settlement, the deed should therefore spell out the wording, placement, timing and duration, and the consequences of non performance.

Effect on damages

Section 38(1) makes evidence admissible in mitigation of damages that the defendant has made an apology to the plaintiff about the publication, or has published a correction of the defamatory matter.⁹ The provision does not fix a discount. The weight of an apology depends on how far it undoes the harm, which in turn depends on what it says, how quickly it was published and whether it reached the same audience.

The High Court explained the underlying logic in Carson v John Fairfax & Sons Ltd. Damages in defamation serve three purposes: consolation for personal distress and hurt, reparation for harm to reputation, and vindication of the plaintiff’s reputation in the eyes of others.¹⁰ A prominent and unequivocal correction serves the third purpose directly, because it tells the audience the allegation was wrong, and in doing so reduces the sum needed to vindicate. A private letter of apology that the audience never sees may console the plaintiff but does little to vindicate.

The same judgment addresses a common assumption. The joint judgment said it had difficulty understanding how the mere absence of an apology can aggravate damages: publishing an apology may mitigate harm, but failing to publish one does not widen the publication. Want of apology may be evidence of a desire to injure, but it does not in itself aggravate the injury.¹¹ Intermediate appellate courts have since qualified that statement. In Ali v Nationwide News Pty Ltd the New South Wales Court of Appeal held that a defendant who publishes no retraction or apology is seen to be continuing to assert the imputations, so the failure can be reflected in general damages, because the harm is prolonged, or in aggravated damages.¹⁹ In Nine Network Australia Pty Ltd v Wagner the Queensland Court of Appeal upheld aggravated damages where the broadcaster maintained a justification plea without a reasonable basis and refused to make even a conditional apology.²⁰ Silence on its own therefore carries little weight, but silence combined with persistence in an allegation that cannot be defended can increase the award.

Prominence, timing and audience

Whether a correction or apology is worth anything turns on three variables, which the Act itself identifies when it directs the court to assess the reasonableness of an offer to make amends. The court must have regard to any correction or apology published before trial, including the extent to which it was brought to the attention of the audience of the original matter, taking into account the prominence given to the correction compared with the prominence given to the original, and the period that elapsed between the two.¹²

Pedavoli v Fairfax Media Publications Pty Ltd is the standard illustration. A newspaper article under a headline about a female teacher resigning over claims of sex with students wrongly identified the plaintiff. The publisher’s apology appeared under the single word “apology”, with no indication of its subject matter, and online it was reached only through a link at the bottom of the home page. McCallum J described it as “barely noticeable” and held that it was highly unlikely to reach anything like the audience of the original.¹³ In Zoef v Nationwide News Pty Ltd the Court of Appeal reached the same conclusion about a proposed apology of “footnote size” in a miscellany column at page 96, when the article had filled page 9.¹⁴

The lessons are concrete. A correction should carry a headline that tells the reader what it is about. It should appear in the same section, on the same page or screen position, with comparable size, for a comparable period. Online, it should appear on the article page itself, not only on a separate corrections page, and should be pushed through the same channels, including social media accounts and syndication partners, that carried the original.¹⁵ It should be published promptly; a correction months after the event has less value than the same words published within days.

Social media and private groups

Publications on social media raise their own problems. A post may have been shared, screenshotted and quoted beyond the original account. The audience of a private Facebook group or a closed messaging thread cannot be reached by a public statement elsewhere. The Act addresses the problem of onward sharing in part: an offer to make amends must include an offer to take reasonable steps to tell anyone to whom the publisher gave the material, or who received it with the publisher’s knowledge, that it is or may be defamatory.³ For digital matter an offer may also include access prevention steps, which means removing the post or disabling access to it.⁴

In practice the appropriate remedy for a social media publication is usually a combination: deletion of the original post, a corrective post in the same forum pinned or left up for an agreed period, and, where the material was shared into other groups, a request to the administrators of those groups to remove it. Deleting the post without a correction leaves the audience with the allegation and no answer. A correction without deletion leaves the allegation available to be found. The agreed wording of a corrective post should also avoid repeating the imputation in a way that republishes it; “I withdraw the statements I made about X on [date]” is safer than restating the allegation and then denying it.

When an apology is enough, and when it is not

For a modest publication with a limited audience, a prompt, prominent and unqualified correction and apology may be the whole remedy. McCallum J acknowledged in Pedavoli that there may be cases in which a reasonable correction combined with a contrite apology would obviate any payment of compensation.¹⁶ Many disputes resolve on exactly that basis, often with a contribution to legal costs. A publisher who offers it within the 28 day period after a concerns notice may also secure the protection of the s 18 defence if the complainant refuses.

For a serious allegation widely published, an apology alone will rarely suffice. In Pedavoli the court held that given the gravity of the imputations a monetary payment was essential to a reasonable offer even if the apology had been of equal prominence to the article.¹⁶ Nor does an apology repair economic loss. A business that has lost contracts because of a false allegation needs the correction, but also needs compensation for the loss, and the Act permits an offer to include compensation for both economic and non economic loss.⁴

From a complainant’s perspective, the critical question in deciding whether to accept an apology is whether it will actually reach the people whose opinion matters. From a publisher’s perspective, it is whether the apology withdraws the sting clearly enough, and prominently enough, that a court would later regard refusing it as unreasonable.

Negotiating the terms

Any agreement for an apology or correction should settle in writing: the exact wording, including the headline; where it will appear, in print, online and on social channels, and in what position and size; when it will first appear and how long it will remain accessible; whether the original will be removed, amended or annotated; whether the publisher will notify third parties who received the material; whether the agreement is confidential; whether the apology is expressed to be without admission of liability (which adds little, since s 20 already provides that an apology is not an admission, but is often requested); and what happens if the publisher does not comply.

Differences between jurisdictions

Sections 20 and 38 appear in the same terms and with the same numbers in every state Defamation Act 2005, including Western Australia. In the Australian Capital Territory the apology provision is s 132 of the Civil Law (Wrongs) Act 2002 (ACT) and the mitigation provision is s 139I.¹⁷ In the Northern Territory the apology provision is s 19 and the mitigation provision is s 35 of the Defamation Act 2006 (NT).¹⁸

Getting advice

The wording of an apology or correction is where disputes are most often won or lost. Complainants and publishers alike benefit from advice before the words are agreed: once published they cannot be improved, and once refused they may found a complete defence.