BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 998| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 998 Page 2 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; AB 998 Page 3 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 AB 998 Page 4 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 AB 998 Page 5 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." AB 998 Page 6 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: AB 998 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, AB 998 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 **** END ****