BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 998|
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                                   THIRD READING 


          Bill No:  AB 998
          Author:   Wagner (R)
          Amended:  6/25/15 in Senate
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  6-0, 7/14/15
           AYES:  Jackson, Anderson, Hertzberg, Leno, Monning, Wieckowski
           NO VOTE RECORDED:  Moorlach

           ASSEMBLY FLOOR:  76-0, 5/28/15 - See last page for vote

           SUBJECT:   Civil law:  libel:  damages


          SOURCE:    Author


          DIGEST:  This bill expands the existing "correction statute,"  
          which limits damages for libel and slander when a newspaper or  
          radio broadcast issues a retraction, by applying it, instead, to  
          daily or weekly news publications, as defined. This bill also  
          includes specified legislative findings.


          ANALYSIS:   


          Existing law: 


          1)Provides, under Article I, Section 2 of the California  
            Constitution, that every person may freely speak, write and  
            publish his or her sentiments on all subjects, being  








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            responsible for the abuse of this right.  A law may not  
            restrain or abridge liberty of speech or press.  


          2)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  
            personal insult, from defamation, and from injury to his  
            personal relations.  Existing law provides that defamation is  
            effected by either of the following: (a) libel; or (b)  
            slander. 


          3)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.  


          4)Specifies, further, 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."  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. 


          5)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;









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                 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.  


          1)Provides, under Section 48a of the Civil Code (the "correction  
            statute"), 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.  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 or  
            broadcaster, at the place of publication or broadcast,  
            specifying the statements claimed to be libelous and demanding  
            that they be corrected. 


          2)Provides, under Section 48a of the Civil Code, 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.  


          3)Requires, under Section 48a of the Civil Code, that any  
            correction published or broadcast in substantially as  







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            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. 


          This bill: 


          1)Replaces references to "newspaper," in the correction statute,  
            above, 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. 


          2)States 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.  States,  
            further, 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  
            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.  Also specifies 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.


          Background









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          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  
          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." 








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          This bill amends 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. 


          Comments


          As stated by 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."  


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified7/16/15)


          California Newspaper Publishers Association


          OPPOSITION:   (Verified7/16/15)


          None received


          ARGUMENTS IN SUPPORT:     The California Newspaper Publishers  
          Association writes in support: 









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                                                                    Page  7


            The purpose of the [Civil Code Section 48a retraction] law is  
            to allow publishers and broadcasters an opportunity to cure  
            and correct statements that could potentially harm a person's  
            reputation in a timely manner. This encourages potential  
            plaintiffs to utilize the correction process to quickly  
            address the potential damage that harmful statements may cause  
            and, if no correction is forthcoming after a demand is made,  
            it provides a hammer to remedy the reputational harm triggered  
            by the defamatory statement.


            This bill would expand the application of Section 48a to  
            include statements made in a weekly printed publication and,  
            by doing so, overturn existing case law. The court cases that  
            denied weekly newspapers the use of Civil Code Section 48a  
            ignored the fact that weekly printed publications cover  
            breaking news on publication deadlines just as a daily  
            newspaper does.


            Specifically, the courts failed to recognize that the modern  
            news cycle is 24 hours, seven days a week and many if not most  
            weekly newspapers have websites on which they post breaking  
            stories on a daily basis. In many cases these weekly  
            publications serve communities where dailies do not exist or  
            no longer circulate.


            By updating Section 48a, AB 998 would acknowledge the gap  
            caused by recent technological developments in news and  
            information delivery platforms and the evolving readership  
            habits and expectations of consumers of news and information.


            Additionally, by affording a weekly print publication the  
            protections of Civil Code Section 48a, the newspaper would be  
            incentivized to publish a retraction or correction demanded by  
            an aggrieved person and, in turn, mitigate and potentially  
            eliminate the potential damage to that individual's reputation  
            in the community.

          ASSEMBLY FLOOR:  76-0, 5/28/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bonilla,  
            Bonta, Brough, Brown, Calderon, Campos, Chang, Chau, Chávez,  







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                                                                    Page  8


            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo  
            Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley,  
            Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,  
            Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,  
            Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,  
            O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  
            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood, Atkins
          NO VOTE RECORDED:  Bloom, Burke, Eggman, Grove

          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          8/13/15 13:38:45


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