Recommendation 12–11 The Act should provide that courts may order the defendant to apologise.
12.160 The purpose of a plaintiff seeking an order for the defendant to apologise—either in private or public—will differ depending on the circumstances of the case. The availability of an order requiring a defendant to apologise may, in some circumstances, vindicate the hurt and distress caused to a plaintiff by a serious invasion of privacy. Given the aim of the new tort is to redress harm done to a personal, dignitary interest, an apology may assist in rectifying a plaintiff’s feelings of embarrassment and distress.
12.161 In many cases, a plaintiff may only seek a public acknowledgment of wrongdoing as a remedy for a serious invasion of privacy. The publicity garnered by a public statement of apology may help to ‘restore the esteem and social standing which has been lost as a consequence of the contravention’.
12.162 Carroll and Witzleb have argued that orders for apology help to ‘redress the injury by restoring the plaintiff’s dignity and personality’. Similarly, Professor Prue Vines has argued:
Apologies are also a tool of communication and of emotion. Apologies may redress humiliation for the victim, shame the offender and help to heal the emotional wounds associated with a wrong.
12.163 Orders for apologies also serve a public interest in focusing on the defendant’s wrongdoing. In this way, public apologies provide an opportunity for a defendant to acknowledge their wrongdoing. Public apologies will therefore carry some deterrent effect and may also serve to educate the public about privacy.
12.164 The ALRC previously recommended that courts be empowered to order a defendant to apologise. The NSWLRC recommended that the defendant’s conduct—including whether they had apologised or made an offer of amends prior to proceedings—should be taken into account when determining actionability. The Victorian Law Reform Commission (VLRC) did not recommend such an order be available to a court, however the VLRC’s final report stated:
Sometimes it may be appropriate to direct a person to publish an apology in response to the wrongful publication of private information or to apologise privately, for an intrusion into seclusion.
12.165 Australian law recognises the significance of apologies where there has been damage to personality or reputation, in a range of actions at statute, equity and at the common law. For example, a court may order an apology under Commonwealth and state anti-discrimination legislation. This area of law is analogous to privacy actions in that anti-discrimination law aims to remedy damage to feelings. Similarly, in defamation law, a court may take a publisher’s apology for defamatory matter into account when assessing damages. In Burns v Radio 2UE Sydney Pty Ltd (No 2), the NSW Anti-Discrimination Tribunal defined a court-ordered apology as an acknowledgement of ‘wrongdoing’ that is distinguished from a personal apology which is ‘sincere and which is incapable of being achieved by a court order’.
12.166 Apology orders are available in some Australian jurisdictions under existing privacy legislation, for example under s 55(2)(e) of the Privacy and Personal Information Protection Act 1998 (NSW). In NZ v Director, Department of Housing, the NSW Administrative Appeals tribunal ordered—under s 55(2)(e)—the Department of Housing to provide written apology to the claimant for disclosing private information to a third party without consent.
12.167 Several media organisations and representative groups opposed this proposal. ASTRA opposed any remedy that would allow for apologies or corrections, arguing that existing provisions in the ASTRA Codes, which are subject to enforcement by the ACMA offer sufficient remedies in the context of subscription broadcasting. However, they argued that this remedy could be applied to non-media defendants who are not subject to the ACMA’s code of conduct. ASTRA and Guardian News also argued that, where there has been a serious invasion of an individual’s privacy, discussion of the relevant information may result in further harm to the individual concerned rather than being an effective remedy. However, if this were the case, the plaintiff would not seek the remedy.
12.168 As with correction orders, the ABC and Guardian News were concerned that apology orders would inhibit editorial independence. Similarly, Guardian News argued that ‘requiring media organisations to correct or apologise will constitute a further and unnecessary restriction on free speech’. However, the remedy would only be one of many available remedies and in any event it can only be considered where the plaintiff has made out a serious, unjustifiable, intentional or reckless invasion of privacy.
12.169 A court may order a public or private apology, depending on the circumstances of a case. For an apology to be sincere and meaningful, a court will not compel an apology where a defendant makes clear they offer no remorse and therefore their apology will not come freely.
12.170 Apology orders, like all court-ordered remedies, are coercive in nature and, if breached, constitute contempt of court. Some legislation anticipates breaches of apology orders by providing that orders must be met within a specified period subject to a fine.
Several stakeholders supported this proposal: N Witzleb, Submission 116; T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; Australian Sex Party, Submission 92; S Higgins, Submission 82; Insurance Council of Australia, Submission 15; I Pieper, Submission 6; I Turnbull, Submission 5.
Eatock v Bolt (No 2) (2011) 284 ALR 114, .
Carroll and Witzleb, above n 17, 237.
Prue Vines, ‘The Power of Apology: Mercy, Forgiveness or Corrective Justice in the Civil Liability Arena?’ (2007) 1 Public Space 1, 15.
Carroll, above n 6, 339.
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) Rec 74–5(d).
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) NSWLRC Draft Bill, cl 74(3)(a)(vi).
Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010) [7.207].
Carroll, above n 6, 213.
See, eg, Federal Court of Australia Act 1976 (Cth) s 23. The Anti-Discrimination Tribunal of NSW is empowered to issue an order requiring a respondent to publish or issue an apology or retraction: Anti-Discrimination Act 1977 (NSW) s 108. Analogous provisions exist in other jurisdictions: Anti-Discrimination Act 1991 (Qld) s 209. Apologies made by respondents in personal injury matters are not treated as evidence of admission of fault: Civil Liability Act 2002 (NSW) s 69.
See, eg, Defamation Act 2005 (NSW) 2005 s 38.
Burns v Radio 2UE Sydney Pty Ltd (No 2)  NSWADTAP 69 (6 December 2005).
NZ v Director, Department of Housing  NSWADT 173 (7 June 2006).
ASTRA, Submission 99; ABC, Submission 93; Guardian News and Media Limited and Guardian Australia, Submission 80.
ASTRA, Submission 99.
ABC, Submission 93.
Guardian News and Media Limited and Guardian Australia, Submission 80.
Eatock v Bolt (No 2) (2011) 284 ALR 114,  (Bromberg J).
See, eg, Anti-Discrimination Act 1977 (NSW) s 108(7).