Apology orders

Proposal 11–12 The new Act should provide that courts may make an order requiring the defendant to apologise to the plaintiff, in an action for serious invasion of privacy.

11.74 The availability of an order requiring a defendant to apologise would, in some circumstances, vindicate the hurt and distress caused to a plaintiff by a serious invasion of privacy.[94] Given the aim of the 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. Witzleb and Carroll argued that orders for apology help to ‘redress the injury by restoring the plaintiff’s dignity and personality’.[95] Similarly, 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.[96]

11.75 The purpose of a plaintiff seeking an order for apology will depend on the circumstances of each case, but may involve the need for acknowledgement of their suffering.[97] 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’.[98]

11.76 The ALRC previously recommended that courts be empowered to order a defendant to apologise.[99] 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.[100] The 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.[101]

11.77 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.[102] For example, a court may order an apology under Commonwealth and state anti-discrimination legislation.[103] 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.[104]

11.78 Public apologies may also serve to educate the public about privacy and deter future serious invasions of privacy.[105] A plaintiff may value the public vindication an apology brings.

11.79 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’.[106]