Suppose you’ve spoken your mind about someone you don’t like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you’re probably not going to want to apologize. But if you’ve either had a change of heart or a sudden realization that you’re about to get sued, there are some good reasons to say you’re sorry.
For one thing, apologizing–if done right–can mitigate the plaintiff’s damages. Plaintiffs who sue for libel or slander in Virginia aren’t just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff’s emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.
The Virginia General Assembly has recognized this principle and has made a policy decision to affirmatively encourage apologies in defamation actions. Virginia Code § 8.01-46 provides that “in any action for defamation, the defendant may…give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation….” Thus, if a defendant is liable for defamation but offers proof that he promptly apologized for his conduct, the evidence will not only be deemed admissible, but the jury will be instructed specifically that it may consider such evidence as having a tendency to reduce both compensatory and punitive damages.
A close cousin of the apology is the retraction (e.g., “I take it back. My chemistry teacher is not really a meth dealer.”) Some states have enacted statutes that eliminate the availability of punitive damages entirely if the defendant issues a full and unequivocal retraction. In Virginia, punitive damages may still be recovered in cases of actual malice, but they will likely be reduced if the defendant subsequently retracts his statement. Interestingly, although the Virginia Code does contain a provision explicitly allowing evidence of retraction to serve in mitigation of damages, that provision only applies to actions against newspapers, magazines, or periodicals. (See Va. Code § 8.01-48). In cases not against media defendants, the mitigation statute would appear to apply only where an “apology” is made. Still, even without the benefit of a statute, issuing a retraction of a defamatory statement is likely to be deemed admissible in evidence and will probably have a diminishing effect on the amount of the verdict.
Perhaps most fundamentally, apologizing for a slanderous statement you made will often result in diffusing the situation and dissuading a prospective plaintiff from filing a legal action in the first place. For some people, a heartfelt apology is all they really want. If you apologize early, before lawyers are retained, you can sometimes prevent an unfortunate situation from becoming worse and save both sides a lot of stress, time, and money.
If you’re going to issue an apology or retraction, make it count. Paula Deen apologized for using a racial slur, but did so in a way that many found disingenuous and she was unable to keep her job. A half-hearted, insincere apology or retraction may cause more harm than good. Statements like “I don’t know why my chemistry teacher was offended by my statement, but I’m sorry if he took it the wrong way” are not genuine apologies. To be effective, an apology cannot be equivocal, partial, or hypothetical; it must express regret for having made the false and defamatory statement, not merely regret about being forced into a situation where you’re having to make a statement you don’t actually agree with. And it should be published as widely and conspicuously as the original libel. In fact, if you’re not careful, publishing a poorly worded “apology” can result in a separate count of defamation against you.
So, should you apologize? That’s up to you. In contrast to the study mentioned above, other studies have shown that you will feel worse about yourself if you apologize. So maybe it’s best to just refrain from spreading false rumors about people in the first place.