BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 998


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          ASSEMBLY THIRD READING


          AB  
          998 (Wagner)


          As Amended  April 13, 2015


          Majority vote


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          |Committee       |Votes |Ayes                   |Noes                 |
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          |Judiciary       |10-0  |Mark Stone, Wagner,     |                    |
          |                |      |Alejo, Chau, Chiu,      |                    |
          |                |      |Gallagher, Cristina     |                    |
          |                |      |Garcia, Holden,         |                    |
          |                |      |Maienschein, O'Donnell  |                    |
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          SUMMARY:  Extends a statutory damage limitation rule that applies  
          to cases involving libel in a newspaper or slander in a radio or  
          television broadcast to a daily news publication, as defined.   
          Specifically, this bill:


          1)Provides that in any action for damages for publication of a  
            libel in a daily news publication, the plaintiff shall recover  
            no more than special damages, as defined, unless the plaintiff  
            demands a correction and the publisher refuses the demand. 


          2)Defines "daily news publication" to mean a publication, either  
            in print or electronic form, that contains news on matters of  








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            public concern and that publishes at least five days a week.


          EXISTING LAW:  


          1)Provides that in any action for damages for publication of libel  
            in a newspaper or slander by a radio (or television) broadcast,  
            the plaintiff is limited to recovery of special damages, as  
            defined, unless a correction is demanded and the correction is  
            not published or broadcast.  If a correction is requested and  
            the defendant refuses to publish or broadcast a correction, then  
            the plaintiff may recover general, special, and exemplary  
            damages, as specified.  


          2)Defines, for purposes of defamation actions, the following  
            categories of damages: 


             a)   "General damages" are damages for loss of reputation,  
               shame, mortification and hurt feelings. 


             b)   "Special damages" are all damages which the plaintiff  
               alleges and proves that he [sic] has suffered in respect to  
               his property, business, trade, profession or occupation,  
               including such amounts of money as the plaintiff alleges and  
               proves he has expended as a result of the alleged libel, and  
               no other.


             c)   "Exemplary damages" are damages which may in the  
               discretion of the court or jury be recovered in addition to  
               general and special damages for the sake of example and by  
               way of punishing a defendant who has made the publication or  
               broadcast with actual malice. 










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          FISCAL EFFECT:  None 


          COMMENTS:  Under the common law, defamation is a strict liability  
          tort, meaning that a plaintiff could usually recover without  
          showing fault on the part of the defendant.  In addition, damages  
          for reputational harm were presumed and thus did not need to be  
          proved.  A plaintiff recovered merely by showing 1) a defamatory  
          statement 2) about the plaintiff 3) that is published.  A  
          defamatory statement is a factual assertion that tends to harm a  
          person's reputation by holding that person up to scorn, ridicule,  
          or contempt.  Although the common law generally presumed  
          reputational harm with a showing that a published statute was  
          false and defamatory, in some cases California law requires a  
          plaintiff to plead and prove "special damages" if the defendant  
          publishes a retraction of the defamatory statement.  Specifically,  
          Civil Code Section 48a - which this bill seeks to amend - limits a  
          plaintiff's recovery to special damages for "libel in a newspaper,  
          or of a slander by radio [or television] broadcast," unless a  
          retraction is demanded by the plaintiff and refused by the  
          defendant.  Only if the plaintiff requests a retraction and the  
          defendant refuses is the plaintiff entitled to general damages  
          and, where appropriate, exemplary (or punitive) damages.  The  
          statute defines "special damages" as "all damages which plaintiff  
          alleges and proves that he [sic] has suffered in respect to his  
          property, business, trade, profession or occupation, including  
          such amounts of money as the plaintiff alleges and proves he has  
          expended as a result of the alleged libel, and no other."  


          Civil Code Section 48(a) reflects the value traditionally placed  
          on freedom of the press and the unique role that newspapers (and  
          later radio and television) have played in the dissemination of  
          news on matters of public concern.  In upholding the retraction  
          statute against a constitutional due process challenge, the courts  
          have held that "the Legislature may reasonably conclude that  
          public interest in the dissemination of news outweighs potential  
          injury to a plaintiff from the publication of a libel, and [the  
          Legislature] may properly encourage and protect news dissemination  








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          by relieving newspapers and radio stations from all but special  
          damages resulting from defamation, upon the publication of a  
          retraction."  In particular, the courts have held that the statute  
          was intended to protect enterprises engaged "in the immediate  
          dissemination of news [because such enterprises] cannot always  
          check their sources for accuracy and their stories for inadvertent  
          publication errors."  As such, the courts have refused to apply  
          the retraction statute to weekly magazines and periodicals,  
          because those publications had time to verify the truthfulness of  
          statements before publishing them.  (Condit v. National Enquirer  
          (2002) 248 F. Supp. 2d 945, 955.)


          According to the author, online news publications, like print  
          publications, may similarly be engage in the immediate  
          dissemination of news and, as such, they should be protected by  
          Civil Code Section 48a.  However, a recent appellate court opinion  
          refused to apply the statute to an online publication, concluding  
          that "if the Legislature intended the statute to apply to  
          defamatory material published on an online website, it could have  
          amended the statute to say so, or add a statute to include such  
          websites within the definition of 'newspaper,' as it did when it  
          enacted Civil Code Section 48.5 in 1949 to expand the term 'radio  
          broadcast' to include both visual and sound recording."  (Thieriot  
          v. The Wrapnews, Inc., 2014 Cal. App. Unpub. LEXIS 2690.) 


          This bill follows the court's lead and provides that express  
          application.  Consistent with underlying purpose of Civil Code  
          Section 48(a), as held by the courts, the bill appropriately  
          limits the protection of the retraction statute to a "daily news  
          publication," either in print or electronic form, that "contains  
          news on matters of public concern and that publishes at least five  
          days per week."  




          Analysis Prepared by:                                               








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          Thomas Clark / JUD. / (916) 319-2334  FN: 0000127