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