It is said that a sincere apology should include the three Rs – regret, responsibility and remedy. Why apologise and how to do it properly is a subject we’ve discussed before. But we continue to see apologies that fail to convince a complainant. So it’s something we thought we’d revisit in this post because the quality of an apology is an important part of our efforts to resolve privacy complaints.

As a recent case has shown, the sincerity of an apology can affect an agency’s bank balance by lessening the damages awarded. The Human Rights Review Tribunal noted in its decision in Raymond Keith Williams v ACC:

An appropriate and timely apology can be taken into account under s 85(1)(4) of the Privacy Act when considering whether the defendant’s conduct has ameliorated the harm suffered as a result of the breach of privacy.

The Tribunal noted that in AB v Chief Executive, Ministry of Social Development:

… an appropriate apology given at the right time is a matter that can be taken into account under s.85(4) of the Act in considering whether and to what extent the defendant’s conduct has ameliorated the harm suffered as a result of an interference with privacy. In this case, however, we think the apology came far too late to have been of any value in that respect.

 

In that case, the defendant took one year to acknowledge the breach and another year to apologise for it. The Tribunal considered the apology had no mitigating effect, describing it as having been provided at the “eleventh hour”, after proceedings had been commenced and was considered to be motivated by litigation concerns.

Referring back to Mr Williams v ACC, the Tribunal said:

The circumstances of the present case are the polar opposite in terms of speed, motivation and sincerity.

 

The apology cannot “erase” the humiliation, loss of dignity or injury to feelings caused by the interference with privacy. Nor is it a “get out of jail free” card. The question in each case is whether and to what degree the emotional harm experienced by the particular plaintiff has been ameliorated. While this is a fact specific inquiry, it can be said that ordinarily an apology must be timely, effective and sincere before weight can be given to it. It is not inevitable an apology, even if sincerely and promptly offered, will ameliorate the emotional harm experienced by the plaintiff. Much will depend on who the particular plaintiff is and the particular circumstances of the case.

The Tribunal awarded Mr Williams $7,500 in damages but it is clear in its reasoning that if ACC had not apologised in such a sincere and timely way, that sum would have been greater.

In another case, a recruitment agency expressed its sincere apologies and stated that the mistake it made was unacceptable, given that confidentiality is vitally important to the nature of its business. The agency also assured our office and the complainant that it had implemented processes to ensure that the mistake would not occur again. The complainant was satisfied and we closed the complaint.

In another example where an apology successfully resolved a dispute after the complainant asked for the apology to come, not from the agency itself, but directly from the person in the agency who breached her privacy. 

Making a sincere apology sounds straightforward but as we see time and time again, many apologies fail to express the three Rs - regret, responsibility and remedy. But getting an apology right could make it easier on everyone – the agency, the complainant and our office – and divert a complaint away from an expensive, time consuming process which ends with an unwelcome sting for your agency.

Image credit: Head of Odysseus via Wikipedia.

complaints, Human Rights Review Tribunal