BILL ANALYSIS Ó AB 998 Page 1 ASSEMBLY THIRD READING AB 998 (Wagner) As Amended April 13, 2015 Majority vote --------------------------------------------------------------------- |Committee |Votes |Ayes |Noes | --------------------------------------------------------------------- --------------------------------------------------------------------- |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, Cristina | | | | |Garcia, Holden, | | | | |Maienschein, O'Donnell | | --------------------------------------------------------------------- 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 AB 998 Page 2 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. AB 998 Page 3 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 AB 998 Page 4 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: AB 998 Page 5 Thomas Clark / JUD. / (916) 319-2334 FN: 0000127