Effect of apology on liability

Recommendation 7–2 The Act should provide that an apology made by the defendant does not constitute an admission of fault or liability and is not relevant to the determination of fault or liability.

7.87 The ALRC recommends that any apology or correction of published material by a defendant should not be treated in evidence as an admission of fault. [103]

7.88 This recommendation is intended to encourage the early resolution of disputes without recourse to litigation. It is similar to provisions in state and territory legislation regulating civil liability,[104] and in defamation law.[105] There is a body of academic literature supporting the role of apologies in resolving disputes and such provisions as a mechanism for achieving justice between disputants. There was also strong stakeholder support for this proposal.

7.89 The ALRC considers that the definition of apology in the NSW Civil Liability Act 2002 should apply to this recommendation:

‘apology’means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.[106]

7.90 Apologies are often associated with an assumption or admission of guilt and are therefore seen to be ‘highly prejudicial’.[107] This recommendation aims to encourage individuals to make apologies without the risk of liability:

It would detract from any dispute resolution process of the parties were reluctant to offer an apology due to possible use as evidence of fault or liability.[108]

7.91 Encouraging defendants to make formal apologies may assist with the resolution of disputes as, in many circumstances, an apology may provide a sufficient response to appease someone whose privacy has been invaded. Guardian News and Media Limited and Guardian Australia supported this point, arguing that

Parties should be encouraged to resolve matters prior to or during litigation. The nature of invasions of privacy is that in many instances an apology, freely given, may be sufficient to resolve the matter. Accordingly, protecting the making of apologies is an important aspect of the ALRC’s proposals.[109]

7.92 The Telecommunications Industry Ombudsman provided analysis of the positive role apologies play in the resolution of disputes under their complaints model:

From our experience, consumers will request apologies to resolve privacy complaints and an apology genuinely made has the potential to encourage the early resolution of disputes. It would detract from any dispute resolution process if the parties were reluctant to offer an apology due to possible use as evidence of fault or liability. An apology can be an important part of resolving a dispute and it is one of several readily available remedies used in ADR processes. From our experience, apologies can help:

  • diffuse tension and create common ground between opposing parties

  • foster constructive discussion and even conciliation between parties

  • alleviate injury and distress caused to aggrieved parties, and

  • reduce the length and severity of disputes.[110]

7.93 Australian research shows that in medical negligence cases, apologies (not court-ordered apologies), can have psychological benefits to plaintiffs.[111]

7.94 Prior to the enactment of the Uniform Defamation Laws in 2005, there was a disincentive for a publisher to apologise for publishing defamatory matter since such an apology could be construed as an admission of liability.[112] Civil liability legislation stipulating that apologies should not be taken as admissions of fault reflects a similar concern:

It was felt that if people apologise it was less likely that there would be litigation; and there is indeed some evidence for this proposition.[113]

7.95 Dr Ian Turnbull raised the concern that some defendants may use apologies as a vehicle to exacerbate the harm caused by the initial invasion, as publishing an apology may

reconvey the private information to a wider audience as part of the apology. That is particularly so where media is used and, for example, a more prominent location within the website or paper is used for the apology.[114]

7.96 To ameliorate this harm, Turnbull suggested the recommendation be qualified by a requirement that the apology be ‘sincere’ or ‘genuine’.[115] The ALRC considers that it is more appropriate to consider the nature or quality of any apology when a court assesses an award of damages.