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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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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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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