BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 998 (Wagner)
Version: June 25, 2015
Hearing Date: July 7, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Civil law: libel: damages
DESCRIPTION
Existing law limits damages for libel and slander when a
newspaper or radio broadcast issues a retraction. This bill
would expand this "correction statute" by applying it to daily
or weekly news publications, as defined. This bill also includes
specified legislative findings.
BACKGROUND
Defamation is generally the communication of a false statement
to someone other than the person defamed that harms the
reputation of that person. Libel is a term that refers to a
written defamation; rather, a published false statement that is
injurious to a person's reputation. Inherently, there is a
challenge in the area of defamation law to balance the need to
protect reputation with the desire to safeguard expression.
(Chemerinsky, Constitutional Law Principles and Policies (2011)
4th Edition, p. 1078.) At common law, it was conclusively
presumed that general damages resulted from the publication of
libel. "The practical result is that the jury may award not
only nominal damages, but substantial sums in compensation of
the supposed harm to the plaintiff's reputation, without any
proof that it has in fact occurred." (Werner v. Southern
California Associated Newspapers (1950) 35 Cal.2d 121, 126
citing Prosser, Torts, Sec. 92, p. 797.)
In enacting Section 48a of the Civil Code, the California
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Legislature made the public policy determination to allow for
the limitation of general damages for libel where a specified
retraction is published, in order to encourage a more active
press by insulating newspapers from liability arising from
erroneous published statements. Originally enacted in 1931 to
limit the liability of newspapers, when the publication was made
without malice through misinformation and mistake, and a
retraction was demanded and published, the section has only been
amended once since, in 1945, into its current form which
provides that in any action for damages for the publication of a
libel in a newspaper, or of a slander by radio (including both
visual and sounds radio) broadcast, the plaintiff may recover no
more than special damages unless a correction is demanded and is
not published or broadcast, as provided. (See 6A Ca Jur Assault
and Other Wilful Torts Sec. 230.) In other words, publishers
have an opportunity to correct errors before being liable for
defamation. As stated by the California Supreme Court in Werner
v. Southern California Associated Newspapers (1950) 35 Cal.2d
121, 128: "In view of the complex and far-flung activities of
the news services upon which newspapers and radio stations must
largely rely and the necessity of publishing news while it is
new, newspapers and radio stations may in good faith publicize
items that are untrue but whose falsity they have neither the
time nor the opportunity to ascertain."
This bill would amend Section 48a to replace reference to
"newspapers" with "daily or weekly publications" thereby
expanding the opportunity to limit defamation damages for
libelous statements through the issuance of retractions to other
modern day mediums of news dissemination, such as online
publications.
CHANGES TO EXISTING LAW
Existing law , article I, Section 2 of the California
Constitution, provides that every person may freely speak, write
and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain
or abridge liberty of speech or press. (Cal. Const., art. I,
Sec. 2(a).)
Existing law provides that, besides the personal rights
mentioned or recognized in the Government Code, every person
has, subject to the qualifications and restrictions provided by
law, the right of protection from bodily restraint or harm, from
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personal insult, from defamation, and from injury to his
personal relations. (Civ. Code Sec. 43.) Existing law provides
that defamation is effected by either of the following: (1)
libel; or (2) slander. (Civ. Code Sec. 44.)
Existing law defines "libel" as a false and unprivileged
publication by writing, printing, picture, effigy, or other
fixed representation to the eye, which exposes any person to
hatred, contempt, ridicule, or obloquy, or which causes him to
be shunned or avoided, or which has a tendency to injure him in
his occupation. (Civ. Code Sec. 45.)
Existing law further specifies that a libel which is defamatory
of the plaintiff without the necessity of explanatory matter,
such as an inducement, innuendo or other extrinsic fact, is "a
libel on its face." Existing law provides that defamatory
language that is not libelous on its face is not actionable
unless the plaintiff alleges and proves that he has suffered
special damage as a proximate result thereof, as specified.
(Civ. Code Sec. 45a.)
Existing law defines "slander" as a false and unprivileged
publication, orally uttered, and also communications by radio or
any mechanical or other means which:
charges any person with a crime, or with having been indicted,
convicted, or punished for crime;
imputes in him the present existence of an infectious,
contagious, or loathsome disease;
tends directly to injure him in respect to his office,
profession, trade or business, either by imputing to him
general disqualification in those respects which the office or
other occupation peculiarly requires, or by imputing something
with reference to his office, profession, trade, or business
that has a natural tendency to lessen its profits;
imputes to him impotence or a want of chastity; or
which, by natural consequence, causes actual damage. (Civ.
Code Sec. 46.)
Existing law provides that in any action for damages for the
publication of a libel in a newspaper, or of a slander by radio
broadcast, a plaintiff can recover no more than special damages
unless a correction is demanded and not published or broadcast,
as specified. Existing law requires that the plaintiff serve,
within 20 days after knowledge of the publication or broadcast
of the libelous statements, a written notice upon the publisher
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or broadcaster, at the place of publication or broadcast,
specifying the statements claimed to be libelous and demanding
that they be corrected. (Civ. Code Sec. 48a(1).)
Existing law provides that if a correction is demanded, as
specified above, and not published or broadcast in substantially
as conspicuous a manner in the newspaper or on the broadcasting
station as the libelous statements were made, in a regular issue
thereof published or broadcast within three weeks after service
of the notice, the plaintiff can seek recovery of general,
special, and exemplary damages, as specified, except that no
exemplary damages can be recovered unless the plaintiff proves
that the defendant made the publication or broadcast with actual
malice (which cannot be inferred or presumed from the
publication or broadcast) and only then in the discretion of the
court or jury. (Civ. Code Sec. 48a(2); see Civ. Code Sec.
48a(4) for definitions of "general," "special" and "exemplary"
damages, as well as "actual malice.")
Existing law requires that any correction published or broadcast
in substantially as conspicuous a manner in the newspaper or on
the broadcasting station as the libelous statements, prior to
receipt of a demand for correction, be of the same force and
effect as though the correction had been published or broadcast
within three weeks after a correction demand. (Civ. Code Sec.
48a(3).)
This bill would replace references to "newspaper" with "daily or
weekly news publication," as defined to mean a publication,
either in print or electronic form, that contains news on
matters of public concern and that publishes at least once a
week.
This bill would state the intent of the Legislature to ensure
that weekly and online publications are afforded the same
protection under Section 48a as is afforded to a daily newspaper
to the extent that the weekly and online publications perform
the same news-disseminating function as a daily newspaper. The
bill would further state that the Legislature finds and declares
that the rulings in Burnett v. National Enquirer, Inc. (1983)
144 Cal.App.3d 991 and Condit v. National Enquirer, Inc. (2002)
248 F.Supp.2d 945 do not fully recognize that the policy of
Section 48a to protect enterprises engaged in the immediate
dissemination of news on matters of public concern, insofar as
time constraints do not reasonably permit such enterprises to
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check sources for accuracy and stories for inadvertent errors,
should extend to online publications and weekly newspapers,
which publish breaking news on deadlines indistinguishable from
daily newspapers. Lastly, the bill would specify that it is not
the intent of the Legislature that Section 48a should apply to
periodicals that publish at longer than weekly intervals, nor is
it the intent of the Legislature that Section 48a should apply
to casual postings on a social networking Internet Web site,
chat room, electronic bulletin board, discussion group, online
forum, or other related Internet Web site.
COMMENT
1. Stated need for the bill
According to the author, "California's Libel Retraction Statute
requires that libel victims ask the publisher to correct or
retract the libelous statement (and be denied) before the victim
can sue for punitive damages. The current statute only applies
to 'libel in a newspaper, or [?] slander by radio broadcast.'
As a result, online publications identical to print ones are
being sued directly without being asked for retraction and
comment. This bill updates the California statute to include
online publications to ensure that the law is applied fairly
across all publications."
2. Bill would expand the protections of the retraction statute
Section 48a of the Civil Code, California's "correction
statute," provides an opportunity for "newspapers" and "radio
broadcasters" (including both visual and sound radio
broadcasters) to correct or retract a libelous or slanderous
statement in order to limit the damages that could be recovered
in a defamation action. Under this statute, a plaintiff is
limited to recovery of special damages, unless he or she demands
a correction and is refused by the defendant. "Special damages"
are defined as "all damages which plaintiff alleges and proves
that he 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." If the correction is
demanded and refused, the plaintiff can seek recovery of general
damages (i.e. damages for loss of reputation, shame,
mortification, and hurt feelings) and, where appropriate,
exemplary, or punitive, damages (i.e. damages which may in the
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discretion of the court or jury be recovered in addition to
general or special damages for the sake of example and by way of
punishing a defendant who has made a publication with actual
malice). This bill seeks to expand the protections of the
correction statute to daily or weekly publications, which the
bill would define to mean "a publication, either in print or
electronic form, that contains news on matters of public concern
and that publishes at least once a week." As a practical
matter, this would include not just traditional newspapers, but
presumably would include online news outlets such as Huffington
Post, CNN, Fox, MSNBC, online versions of newspapers, and
others. It would also potentially capture weekly magazines,
such as National Enquirer, that were previously excluded from
the protection of the correction statute.
Under current law, "[t]he essential question" for whether or not
the correction applies to a particular type of print or written
medium "is not whether a publication is properly denominated a
magazine or by some other designation, but whether it ought to
be characterized as a newspaper within contemplation of the
statute, a question which must be answered in terms which
justify an expanded barrier against damages for libel only in
those instances in which the constraints of time, as a function
of the requirements associated with production of the
publication, dictate such results." (6A Cal. Jur. Assault and
Other Wilful Torts Sec. 232, citing Burnett v. National
Enquirer, Inc. (1983) 144 Cal.App.3d 991.) In Burnett v.
National Enquirer, Inc., the Court of Appeal considered the
question of whether a weekly publication that published
slanderous statements about a famous personality was excluded
from the protection afforded to "newspapers" under the
correction statute. There, the court upheld the trial court's
conclusion that the defendant publication was not a "newspaper"
for purposes of the correction statute, based on the reasoning
that the statute is limited to those who engage in the immediate
dissemination of news. In contrast, the evidence indicated
that the publication in question, the National Enquirer,
provided little to no coverage of subjects such as politics,
sports, or crime; that in general it did not make reference to
time; and that the normal 'lead time' for its subject matter was
one to three weeks" as opposed to "day to day" like a newspaper.
(144 Cal.App.3d at 1000.) Accordingly, citing dicta in the
California Supreme Court decision in Werner v. Southern
California Associated Newspapers (1950) 35 Cal.2d 121 regarding
the purpose of the statute, which "hing[es] on the inability of
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newspapers to verify information while optimally disseminating
news," the court determined that the National Enquirer should
not be characterized as a "newspaper." (Id. at 1001.)
Other courts have similarly refused to extend the protection of
the correction statute to weekly publications, under the theory
that longer "lead times" allow for an opportunity to uncover the
truthfulness of a statement and that the legislative policy of
Section 48a is limited to publications which engage in the
immediate dissemination of news, where one cannot always check
their sources for accuracy and their stories for inadvertent
publication errors. For example, in Condit v. National
Enquirer (2002) 248 F.Supp.2d 945, a case involving a libel
action brought by a former congressman's wife against the
National Enquirer, the federal district court noted that a news
publication subject to the correction statute, Section 48a,
"must function under such time constraints in its mode of
operation that prevent accuracy checks or make it impractical to
avoid inadvertent publication errors." (Id. at 955.) Using the
factors employed in the Burnett case, the court concluded that
the Enquirer's overall content established that its primary
focus was not "'the very free and rapid dissemination of news
(Section 48a) seeks to encourage.'" (Id. at 958-959, citing
Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 115
(emphasis added in Condit).) The court was unpersuaded by the
fact that the Enquirer occasionally published significant
breaking news, ultimately concluding that the Enquirer did not
qualify as a newspaper under Section 48a, because the record did
not establish that the Enquirer was under pressure to publish
news as it happened, or "under circumstances where it cannot
confirm the accuracy and reliability of its information and
sources. Rather the Enquirer appears to 'have the advantage of
greater leisure in which to ascertain the truth of allegations
before publishing them.' [Citation omitted.]" (Id. at 959, 963.)
That being said, it does not appear that any case, including
Werner or Field Research, relied upon in Burnett and Condit, has
"squarely addressed the question of whether only those media
which cover news events are within the purview of section 48a.
[. . . Werner] did not affirmatively conclude what the
Legislature's purpose was in enacting the statute; only that the
Legislature 'could' have had a reasonable basis for classifying
newspapers and radio stations apart from others." (Kalpoe v.
Superior Court, 222 Cal.App.4th 206, 215.) Indeed, in
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upholding the constitutionality of correction statute under
equal protection and due process grounds, Werner merely
acknowledged that "[t]he Legislature may reasonably conclude
that the public interest in the dissemination of news outweighs
the possible injury to a plaintiff from the publication of a
libel, and may properly encourage and protect news dissemination
by relieving newspapers and radio stations from all but special
damages resulting from defamation, upon the publication of a
retraction." (Werner, 35 Cal.2d at 128.) This bill appears to
now represent a public policy decision to further limit the
remedies available to an injured party in order to expand the
First Amendment protections for certain publishers who issue
retractions of potentially slanderous statements under the
correction statute, even where the publisher arguably had longer
periods to verify the statements in the case of weekly
publications.
Significantly, the bill would specify in its legislative
findings that the rulings in Burnett and Condit do not fully
recognize that the policy of Section 48a to protect enterprises
engaged in the immediate dissemination of news on matters of
public concern, insofar as time constraints do not reasonably
permit such enterprises to check sources for accuracy and
stories for inadvertent errors, should extend to online
publications and weekly newspapers, which publish breaking news
on deadlines indistinguishable from daily newspapers. At the
same time, the bill's legislative findings would specify that it
is not the intent of the Legislature that Section 48a should
apply to periodicals that publish at longer than weekly
intervals, or to casual postings on a social networking Internet
Web site, chat room, electronic bulletin board, discussion
group, online forum, or other related Internet Web site.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 2368 (Wagner, 2014) would have expanded
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these libel provisions to additionally include libel in a
periodical or other medium, either in print or electronic form.
That bill died in the Assembly Judiciary Committee without a
hearing.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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