Court-ordered apologies and corrective statements

Three kinds of order

• An order to apologise. The court tells a party to apologise to the other. South Africa's Constitutional Court made this order in 2011 ⁵.
• An order to publish a summary of the judgment. The court tells the losing defendant to publish what the court found. Section 12 of the Defamation Act 2013 gives this power in England and Wales ¹.
• An order to publish corrective statements. The court sets out statements a party must publish to correct past claims. A US federal court used this in a civil racketeering case ³.

South Africa: apology as a remedy

In Dikoko v Mokhatla, decided on 3 August 2006, the Constitutional Court dismissed an appeal in a defamation case and left an award of R110,000 in place ⁴. Two judges wrote about apology. One wrote that a public apology will usually be far less costly than an award of damages. Another wrote that the principal goal should be repair rather than punishment ⁴. Those views were not reflected in the final order ⁴.

In Le Roux and Others v Dey, decided on 8 March 2011, the Court replaced an award of R45,000 with R25,000. It ordered the defendants to tender an unconditional apology to the plaintiff for the injury they caused him ⁵.

The 2006 judgment notes that the Equality Court can order an apology in hate speech cases ⁴.

England and Wales: a summary, not an apology

Section 12 of the Defamation Act 2013 lets a court that gives judgment for the claimant order the defendant to publish a summary of the judgment ¹. The wording, time, manner, form and place of publication are for the parties to agree. If they cannot agree on the wording, the court settles it. If they cannot agree on the rest, the court may give directions ¹.

The section extends to England and Wales ¹. It does not order an apology. It orders publication of what the court decided ¹.

The press code used by IPSO members says a publication must report fairly and accurately the outcome of a defamation action to which it has been a party. An agreed settlement can state otherwise ².

United States: corrective statements

After a nine-month civil racketeering trial, the US District Court for the District of Columbia issued a permanent injunction in 2006. It ordered cigarette makers to issue corrective statements ³. The Justice Department says appeals delayed the statements until 2017 ³.

The statements were set to begin on 24 November 2017. They were to run as full-page print advertisements in more than 50 newspapers over four months, and on television for one year ³. Company websites and package onserts were covered too ³.

The court found that the defendants had lied, misrepresented and deceived the American public on topics such as the health effects of smoking, addiction, light cigarettes, youth marketing and secondhand smoke ³. The Court of Appeals set aside the retail point-of-sale displays, according to the Justice Department release ³.

How these orders differ from apology laws

Apology laws deal with voluntary apologies and how courts treat them. Ordered apologies and statements are remedies a court imposes.

Defamation often sits outside apology laws. Scotland's Apologies Act does not apply to defamation proceedings ⁶. In New South Wales, apologies in defamation cases fall under section 20 of the Defamation Act 2005, not the Civil Liability Act ⁷.