Good mediators think a lot about apologies because they are always searching for things that a party can contribute to the settlement “pie” that may not cost that party much (or anything) but nonetheless have value in the eyes of the party receiving them. I have mediated disputes in which a party viewed an apology from the other party, plus a promise to take remedial action, as more important than a monetary settlement. That makes it important to be able to distinguish between a real apology and a fake apology.

What is an apology? You have to be able to recognise a real apology before you can detect all the fake ones out there. On analysis, there seem to be several essential ingredients in an apology: 

1. An acknowledgment of responsibility for an act that caused harm: “I ran over your cat.” Some “apologies “ don’t even extend this far, e.g., “I’m so sorry that your cat was run over.” The presence of the passive voice should be a red flag to you, indicating a probable phony apology, because it does not attribute responsibility to anyone.
2. An acceptance that the act that was done was wrong: “It was wrong of me to run over your cat – I shouldn’t have been speeding down the driveway.” Many “apologies” don’t extend this far but, instead, merely state that the apologiser is sorry that the other party has been injured, without either accepting responsibility for the act that caused the harm, or acknowledging that it was wrong to have done the act, e.g., “I am so sorry that you are upset at your cat having been run over.” Note, again, the use of the passive voice to avoid attributing responsibility to anyone.
3. An apology for having done the act that was wrong and caused harm: “I apologise for running over your cat.”
4. A request for forgiveness: “Please forgive me for running over your cat.” This is probably not an essential ingredient of an apology. But it not only powerfully emphasises the apologiser’s acceptance that what they did was wrong but also – because the apologiser feels the need to be forgiven – elevates the person to whom the apology is made into the morally powerful position of being able to dispense or withhold forgiveness.
5. A promise to take remedial action or an assurance that remedial action has already been taken: “I’ve installed speed humps in the driveway so that, in future, I’ll never go fast enough to run over a cat.” Again, this is not an essential ingredient, but it powerfully reinforces the acceptance of responsibility, reassures the injured person that it will not happen again and, possibly, gives them hope that, because the suffering they encountered will not be inflicted on them again, or on anyone else, they have not suffered in vain. It seems to be particularly important in medical negligence cases.

So, a full 1+2+3+4+5 apology is: “I ran over your cat. It was my fault – I was speeding down the driveway. I apologise from the bottom of my heart. To make sure it never happens again, I’ve installed speed humps in the driveway. Please forgive me.“ 

Interestingly, the legal definition of “apology” in New South Wales does not go nearly this far. Section 68 of the Civil Liability Act 2002 (NSW) defines “apology” this way:

“In this Part – apology means an expression of sympathy or regret, or 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.” (emphasis added)

We might regard the Civil Liability Act s. 68 definition as articulating the bare minimum necessary to constitute an apology, while contemplating that some apologies will go further by expressly or impliedly admitting fault. Section 69 of the Act then provides that an apology does not constitute an admission of fault or liability, is not relevant to the determination of fault or liability, and is not admissible in any civil proceedings as evidence of fault or liability.

Section 20 of the Defamation Act 2005 (NSW) makes similar provision about the effect of apologies in defamation proceedings, but that act does not define “apology“, nor does the Interpretation Act 1987 (NSW).

Some apparent apologies do not even go as far as the s. 68 bare minimum. Here is part of the statement posted by the Australian Broadcasting Commission on 31 May 2021 in relation to the discontinance of defamation proceedings brought against it and one of its reporters by the former federal Attorney-General Christian Porter:

“The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted.” (emphasis added)

One can assume that the terms of this statement were the subject of some hard negotiations between the parties’ legal teams and that they represent the result of compromises by both parties. The ABC says that it did not intend to accuse Mr Porter of being guilty of criminal offences … but accepts that what it said was capable of being misinterpreted as doing that.

But note the use of the passive voice, which makes it impossible to attribute the expression of regret to anyone in particular. The ABC did not say that it regretted the misinterpretation. Instead, it said “that reading … is regretted“. By whom, you ask? Was this “an expression of regret” by the ABC within the meaning of s. 68?

If you start looking hard at “apologies”, armed with the criteria in this post, you will be amazed at how few actually are genuine apologies. Be alert for the most pernicious of all fake apologies, the very common insult-and-justification-masquerading-as-an-apology. This takes the form, “Some people were so foolish as to take offence at my comments last week on [insert subject matter] and I’m really sorry about that.” Many of Donald Trump’s comments about his outrageous statements took this form.

This sort of fake apology has none of the ingredients of an apology. It does not contain an admission that the speaker’s comments were offensive, nor an apology for giving offence by making the comments. Instead, it insults the people who found the comments offensive by saying that they were foolish to have taken offence. It then redoubles the insult by saying that the speaker is really sorry that those people are so foolish – in other words, they are so foolish that they deserve pity for their foolishness. And, finally, note that the statement actually amounts to a justification of the comments – by saying that only really foolish people would have found them offensive – rather than an apology for making the comments.

So now that your fake-apology-antennae are finely tuned, you are ready to go forth, detect and expose all those fake apologies out there!

For further legal analysis, see Robyn Carroll, Apologies as a Legal Remedy, (2013) 35(2) Sydney Law Review 317.

Robert Angyal SC

17 July 2021