BILL ANALYSIS Ó
AB 998
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CONCURRENCE IN SENATE AMENDMENTS
AB
998 (Wagner)
As Amended June 25, 2015
Majority vote
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|ASSEMBLY: | 76-0 | (May 28, |SENATE: |40-0 | (August 31, |
| | |2015) | | |2015) |
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Original Committee Reference: JUD.
SUMMARY: Extends a statutory damage limitation rule that
applies to cases involving libel in a newspaper or slander in a
radio or television broadcast to online daily and weekly news
publications, as defined. Specifically, this bill:
1)Provides that in any action for damages for publication of a
libel in a daily news publication, the plaintiff shall recover
no more than special damages, as defined, unless the plaintiff
demands a correction and the publisher refuses the demand.
2)Defines "daily news publication" 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.
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The Senate amendments extend the application of this bill to
weekly as well as daily online publications.
EXISTING LAW:
1)Provides that in any action for damages for publication of
libel in a newspaper or slander by a radio (or television)
broadcast, the plaintiff is limited to recovery of special
damages, as defined, unless a correction is demanded and the
correction is not published or broadcast. If a correction is
requested and the defendant refuses to publish or broadcast a
correction, then the plaintiff may recover general, special,
and exemplary damages, as specified.
2)Defines, for purposes of defamation actions, the following
categories of damages:
a) "General damages" are damages for loss of reputation,
shame, mortification and hurt feelings.
b) "Special damages" are all damages which the plaintiff
alleges and proves that he [sic] 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.
c) "Exemplary damages" are damages which may in the
discretion of the court or jury be recovered in addition to
general and special damages for the sake of example and by
way of punishing a defendant who has made the publication
or broadcast with actual malice.
FISCAL EFFECT: None
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COMMENTS: Under the common law, defamation is a strict
liability tort, meaning that a plaintiff could usually recover
without showing fault on the part of the defendant. In
addition, damages for reputational harm were presumed and thus
did not need to be proved. A plaintiff recovered merely by
showing 1) a defamatory statement 2) about the plaintiff 3) that
is published. A defamatory statement is a factual assertion
that tends to harm a person's reputation by holding that person
up to scorn, ridicule, or contempt. Although the common law
generally presumed reputational harm with a showing that a
published statute was false and defamatory, in some cases
California law requires a plaintiff to plead and prove "special
damages" if the defendant publishes a retraction of the
defamatory statement. Specifically, Civil Code Section 48(a) -
which this bill seeks to amend - limits a plaintiff's recovery
to special damages for "libel in a newspaper, or of a slander by
radio [or television] broadcast," unless a retraction is
demanded by the plaintiff and refused by the defendant. Only if
the plaintiff requests a retraction and the defendant refuses is
the plaintiff entitled to general damages and, where
appropriate, exemplary (or punitive) damages. The statute
defines "special damages" as "all damages which plaintiff
alleges and proves that he [sic] 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."
Civil Code Section 48(a) reflects the value traditionally placed
on freedom of the press and the unique role that newspapers (and
later radio and television) have played in the dissemination of
news on matters of public concern. In upholding the retraction
statute against a constitutional due process challenge, the
courts have held that "the Legislature may reasonably conclude
that public interest in the dissemination of news outweighs
potential injury to a plaintiff from the publication of a libel,
and [the Legislature] 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." In particular, the courts have
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held that the statute was intended to protect enterprises
engaged "in the immediate dissemination of news [because such
enterprises] cannot always check their sources for accuracy and
their stories for inadvertent publication errors." As such, the
courts have refused to apply the retraction statute to weekly
magazines and periodicals, because those publications had time
to verify the truthfulness of statements before publishing them.
(Condit v. National Enquirer (2002) 248 F. Supp. 2d 945, 955.)
According to the author, online news publications, like print
publications, may similarly be engage in the immediate
dissemination of news and, as such, they should be protected by
Civil Code Section 48(a). However, a recent appellate court
opinion refused to apply the statute to an online publication,
concluding that "if the Legislature intended the statute to
apply to defamatory material published on an online website, it
could have amended the statute to say so, or add a statute to
include such websites within the definition of 'newspaper,' as
it did when it enacted Civil Code Section 48.5 in 1949 to expand
the term 'radio broadcast' to include both visual and sound
recording." (Thieriot v. The Wrapnews, Inc., 2014 Cal. App.
Unpub. LEXIS 2690.)
This bill follows the court's lead and provides that express
application. Consistent with underlying purpose of Civil Code
Section 48(a), as held by the courts, this bill appropriately
limits the protection of the retraction statute to online news
publications that publish news on matters of public concern at
least once per week.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0001275
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