Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies

Abstract

Legal scholars have been encouraged to examine alternative remedies for defamation in response to an increasing criticism of monetary damages. Various types of non-pecuniary relief (such as retraction, right of reply, publication of court decisions or declaratory judgement) have been made the subject of elaborate studies. The role of court-ordered apologies as a non-pecuniary defamation remedy has been scarcely discussed in academic literature. The work that has been done focuses either on the remedial role of apologies in East Asian jurisdictions or on apologies as a civil legal remedy aimed at emotional recovery for specific kinds of harm (such as personal injury, invasions of privacy or violations of equal opportunity legislation). These studies, which mostly go beyond the scope of defamation law, pay very little attention to the Western legal tradition. The Anglo-American and continental-European legal culture are considered non-apologetic traditions, which are clearly unfamiliar with the remedy of imposing apologies. Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a defamation remedy in a non-negligible part of the Western legal tradition. This is demonstrated through a profound comparative legal analysis of continental legal systems (Western, Central as well as Eastern European jurisdictions), a mixed legal system (South-Africa) and common law systems. Simultaneously, this article allows us to gain a better understanding of why this remedy is still applied in some jurisdictions and why it has disappeared in others. The article proceeds on the premise that a case can be made for court-ordered apologies as a defamation remedy in the Western legal tradition, and accordingly, it is argued that they are worth considering in jurisdictions which do not make use (anymore) of this legal tool. First, in operating a symbolic reversal of the original defamatory assertion, court-ordered apologies are more likely to produce a shaming effect than other remedies. Second, it is possible to attribute an educative function to court-ordered apologies, allowing courts to educate members of the community about what constitutes unlawful and injurious statements. When examining the implementation of court-ordered apologies as defamation remedy, a civil-common law divide comes to the fore. Whereas apologies can be introduced in continental legal systems as a form of reparation, it is harder to import them into Anglo-American legal systems. The same goes for the reconciliation of this type of relief with freedom of expression, which is simpler to attain under the balancing test of the European Court of Human Right than in some common law systems.