Sorry seems to be the hardest word

The non-denial denial has long been famous as a cringingly bad attempt to avoid blame (or telling the truth), where over-qualification either weakens the denial, or kills it completely. “I did not have sexual relations with that woman, Miss Lewinsky,” or “We have no plans [before the election] to introduce tuition fees.”

And so it is with apologies. A swift and genuine apology, which reflects the gravity of the libel in question, can go a long way to countering reputational damage, whereas a late, dismissive or obviously calculated apology, will often backfire.

Apologies matter because they to go to the heart of why libel laws exist, which is to protect and vindicate reputations. Injunctions and compensation have an obvious role, but often the key remedy is some form of corrective statement – it gives the claimant a practical means of facing detractors, as well as a shield against future fallout.

That the right apology can be crucial to achieving vindication is reflected in the court’s approach to damages. A defendant may rely in mitigation of damages on the fact that he has already apologised.

A suitable apology, plus compensation, also underpins the statutory offer of amends regime, designed to provide the claimant with speedy redress, particularly where the defendant is quick to admit liability.

If the parties nevertheless fail to agree the level of compensation, a judge stepping in to make an assessment will take into account the speed and quality of the apology. It is not uncommon for the notional trial award to be heavily discounted, sometimes by as much as 50 per cent, to reflect the fact that the defendant, in making an offer of amends, has behaved reasonably, and the claimant, on receipt of it, knows he has “won”.

More recently, an early decision under the new Defamation Act, Cooke v MGN Ltd, suggests that a “prompt and prominent” apology may even go so far as to a neutralise the serious harm needed to found a claim.

Here the apology, published in the next edition of the Sunday newspaper and by the time of the first hearing more accessible online than the original article, was considered “sufficient to eradicate or at least minimise any unfavourable impression”.

It remains to be seen whether a grave libel – such as a false accusation of terrorism – could be offset in this way. Certainly though, it emphasises the value of a prompt apology.

So what is an effective apology?

Judges tell us it should involve both a withdrawal of the allegations and an expression of regret. It shouldn’t merely repeat the retractions of a third party. And, in the words of Mr Justice Tugendhat, it should be “full and frank” i.e. one that the Defendant believes in.

Thus Lord Williams, when arguing on behalf of the Sunday Mirror in an action brought against it by Sir Elton John, quoted the claimant’s immortal song lyric, “Sorry seems to be the hardest word,” in a bid to show that the newspaper had nevertheless offered to apologise. The jury, however, unpersuaded by the defendant’s remorse, awarded Sir Elton £350,000 in damages (albeit later reduced on appeal).

Other classic examples include the Daily Mirror’s full-page, poster-style apology to Steve Bing, published opposite a comment piece lamenting Americans’ failure to appreciate irony. Suffice it to say the gesture did not go down well. Bing threatened to sue (again), but never did.

Similarly, when the Daily Mail attempted to apologise to Kate Winslet in an obscure corner of page 27, Mr Justice Eady agreed the apology was inadequate, and allowed her to counter the defendant’s “spin” on settlement with her own statement in open court.

As for The Guardian’s cursory apology to an officer falsely linked to Abu Ghraib abuses, published three months after the defamatory article in its “Clarifications and Corrections” column (alongside a piece pointing out that a Sadler’s Wells ballet had been wrongly referred to as having an “all-male cast”), Mr Justice Eady described the newspaper’s response as “at the least, ungenerous”, before awarding the claimant almost £60,000. Likewise, a late offer of apology, on the eve of trial, can look like a cynical ploy to reduce damages.

The lesson?

Recognise when you’ve got it wrong, correct the position and make it count. Don’t qualify an apology, and give it the prominence it deserves.

A final word of warning. In 1954, an editor employed by Kemsley Newspapers published a grovelling apology without consulting the author of the article complained of. Humiliated, the journalist successfully sued the newspaper for libel, paving the way for similar suits by fellow writers against their own newspapers. Overly enthusiastic editors, beware.

This article by Nigel Tait was first published in the Press Gazette on 11 February 2015.

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