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 14, 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  :  California Newspaper Publishers Association

           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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