An apology or retraction can give rise to difficulties in defamation, as seen in a recent English High Court case concerning an article about Melania Trump being retracted by a newspaper

A recent English High Court decision, Burleigh v Telegraph Media Group Ltd [2020] EWHC 2359 (QB), grapples with the question of whether an apology or retraction of an article can count as defamatory of the author of the original piece.


The claimant was Nina Burleigh, a US journalist and author. She was the author of a book called Golden Handcuffs: The Secret History of Trump's Women, which included reporting on the US First Lady Melania Trump.

On 19 January 2019, the Daily Telegraph published an article called “The Mystery of Melania” (the “original article”) in its Saturday magazine. The article noted: “In a scandalous new book the White House hates, Nina Burleigh goes in search of its most enigmatic resident.” The Telegraph article appears to have been excerpted from the book.

On 26 January 2019, the Telegraph published a piece labelled “Melania Trump – An Apology”. The apology did not identify the author of the original article. It stated:

  • “We have been asked to make clear that the article contained a number of false statements which we accept should not have been published.”
  • “The article also wrongly claimed that Mrs Trump's mother, father and sister relocated to New York in 2005 to live in buildings owned by Mr Trump. They did not.”
  • “The claim that Mrs Trump cried on election night is also false.”
  • “We apologise unreservedly to The First Lady and her family for any embarrassment caused by our publication of these allegations. As a mark of our regret we have agreed to pay Mrs Trump substantial damages as well as her legal costs.”

Ms Burleigh has vigorously defended her piece (and the book from which it was sourced) in the US press, and it seems that the book did not encounter any legal issues in that country.

The claim

While the apology (and its accompanying steps) appear to have saved the Telegraph from a defamation case at Mrs Trump's hands, it was not the end of their adventures in defamation arising out of the article. Ms Burleigh brought a claim against the Telegraph alleging that the terms of the apology served to defame her.

Her claim (opinion, para 3) was that people would understand the apology to mean that she: “negligently or maliciously wrote a piece so littered with serious and defamatory falsehoods about Mrs Trump that it should not have been published and justified the payment of substantial damages to her, as well as a full and prompt retraction and apology”.

As the judgment notes (para 4), no more expansive or contextual meaning was pleaded by way of innuendo (the doctrine whereby an otherwise innocuous statement can, by its context, become defamatory).

The hearing and judgment

The High Court ordered that a preliminary hearing be held on the meaning of the apology and the question of whether that could be considered defamatory of Ms Burleigh (para 6). Interestingly, as noted in the judgment, this does not appear to be the first time that the possibly defamatory nature of an apology or retraction has been considered (paras 10-12).

In considering whether the hypothetical ordinary reader would have considered the apology defamatory of Ms Burleigh, Nicklin J took the view, in line with the parties' pleadings, that such a reader would not have read the original article (para 7).

The main thrust of Ms Burleigh’s argument was that a reader would understand the apology to mean that she had failed to exercise care and skill in her professional work as a journalist. In essence, her counsel suggested that the terms of the apology were so damning as to go beyond merely an admission of error and into the territory of suggesting that Ms Burleigh had acted “negligently or maliciously” in her preparation of the piece (paras 10, 13, 16).

Counsel for the Telegraph was able to point to Singaporean authority in which a court had held that even saying an article was “unfounded” was not enough to be defamatory as it could be interpreted, in context, as meaning simply that the author had been mistaken as to the underlying facts, drew the wrong inference or wrong conclusion (para 11). As the paper's submissions noted, there was no assertion of culpability on the part of Ms Burleigh evident in the wording of the apology and to arrive at such a point would require a reader to go well beyond the text of the apology into conjecture (para 14).

Mr Justice Nicklin ultimately concluded that the meaning of the apology was not defamatory of Ms Burleigh (para 18). As he observed, the hypothetical ordinary reader would not simply have to note the admission that some of the statements in the original article were false but would then have to take an extra step. That step would be to reflect on how those untrue statements had come to be. In doing so, the reader would have to draw the most serious or most scandalous of conclusions from a possible range of reasons including the possibility that innocent mistakes (on the part of Ms Burleigh or others) had been made. Since it was not inevitable that an ordinary reader would draw a conclusion that there had been professional failings, Ms Burleigh's claim could not succeed.

The judge also made two particularly important comments (paras 21-22):

  • “Whether any particular apology conveys a defamatory imputation depends upon the precise words used, their context and their overall effect. That task is to be performed by applying the established principles that guide the assessment of meaning rather than casting around for analogous cases”; and
  • “By the same token, I reject [counsel for the Telegraph]’s submission that the court should be influenced in its assessment of meaning, as a matter of policy, by a desire to maintain the effectiveness of published apologies in the settlement of defamation claims. The meaning of a published apology, like any other publication, is ascertained by application of the established principles.”

Implications of the judgment

Burleigh throws up a number of different, interesting points. While an English case, there is nothing in the principles applied to suggest that this decision would not be of persuasive authority in Scotland.

The case illustrates the care that must be taken with pleading meanings (and their context) in the course of any defamation case. It also illustrates once again the highly specific question of what the particular words used convey to a reasonable, ordinary reader, and the case law suggesting that such a reader will not tend to the most scandalous or critical of meanings in interpreting a statement. The judgment also suggests that a nuanced approach should be taken to apologies or retractions in that, even where it is seemingly admitted that something has gone (perhaps seriously) wrong, the attribution of blame to one person is not a finding that arises automatically from that. That being said, Nicklin J was also careful to reject the submission that, for policy reasons, some special test or some added deference should be applied to the terms of an apology or retraction.

The fact that Mrs Trump chose to threaten defamation proceedings in the UK, against the Telegraph, rather than against Ms Burleigh and her book in the USA, is again a reminder of the burden that publishers (and authors) bear in the UK context of proving either the truth of allegedly defamatory statements or that they were acting under the cover of some privilege, and the difference in the respective countries' defamation laws (though publishers can sometimes decisively turn the tables on defamation claimants as the recent Depp case demonstrates).

Burleigh is potentially of wider implication when thinking about apologies. In this case, an apology was given in the context of an underlying claim for defamation (by Mrs Trump). However, the possibility that an apology might defame someone other than the person to whom the apology is made does not seem to be confined to that context. Depending on the terms of the apology, it could equally apply, for instance, where a local authority apologises for the conduct of teachers in conducting a field trip where a child is seriously injured, or to a head contractor apologising to its employer for the actions of its subcontractors in a construction project gone awry. In each of these cases, there is the potential for an apology which could be interpreted in such a way as to defame, depending on the particular words used.

In the Scots context, there is also the possibility that even where the content of the apology is not defamatory, it could amount to a verbal injury if it is still false. The law in this area is not particularly easy to navigate, but generally requires that a false statement must be made with malice to attract liability (Barratt International Resorts Ltd v Barratt Owners Group 2003 GWD 1-19 (OH)), and it may be difficult to establish that requirement when the primary intent of the maker of the apology will usually be to pacify the feelings of the target of the apology rather than to aggravate some other party.

It is worth noting in passing that the Apologies (Scotland) Act 2016 seems to provide no defence to such a claim in Scots law. The Act has the general purpose of shielding the maker of an apology from that statement being used to establish liability. However, its application in this context would seem to suffer from two problems. First, it is not available in defamation actions generally (s 2). Secondly, purposively, the Act seems aimed at preventing the person to whom the apology is made (or others affected by the same circumstances) from using it to establish liability, but it says nothing about its potential use by third parties who are offended not by the act which motivated the apology but by the terms of the apology itself (s 1).

It would appear that Ms Burleigh intends to appeal the decision of the High Court, so there may be room for further developments in this area.

The Author

Fergus Whyte, advocate, Arnot Manderson Advocates

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