California amendment extends libel provisions to online publications

California Gov. Jerry Brown signed into law an act extending libel retraction and damages provisions to print and online publications.

Assembly Bill 998 replaces the term “newspaper” with “daily or weekly news publication.” This alteration extends libel protections to online daily or weekly publications which were not protected under the original legislation.

Section 1 of AB 998 states “it is the intent of the Legislature to ensure that weekly and online publications are afforded the same protection under Section 48a of the Civil Code 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.”

In a standard libel case, a plaintiff is limited to recover no more than special damages “which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation” under California Civil Code.

Karen Henry, counsel at Davis Wright Tremaine LLP who has written on this topic, said in an article the amendment recognizes the gap in protection caused by developments in news delivery platforms.

The California Court of Appeals ruled last year the statute only applied to newspapers or radio broadcasts in Thieriot v. The Wrapnews Inc.

Without requesting a retraction, Elisabeth Thieriot sued The Wrap News, a digital news organization, for defamation. The Wrap published an article stating Thieriot’s partner accused her of running from Mexico with footage of their documentary about the Mayans.

The initial court dismissed the case and determined it was a strategic lawsuit against public participation (SLAPP).

When Thieriot appealed, the appeals court reversed the decision, stating The Wrap “should not to be afforded the same protections as newspapers because the 1931 law defines a newspaper as ‘a publication that was printed on inexpensive paper, often daily.’”

Henry said the court opted for strict construction, denied protection to The Wrap, and impliedly challenged legislator to do something about it.

Law professor and prominent blogger Eugene Volokh wrote an article about this decision in The Washington Post. This article was brought to the attention of Assemblymen Donald Wagner (R-Irvine).

“The California libel statue was in desperate need of an update,” said Wagner in a statement. “I am pleased that with the passage of my bill we will see a common-sense approach being used instead of more lawsuits. This bill is a win for both the newspapers and the readers.”

Henry said there is no reasonable justification to treat online publications differently than print or broadcast because people are just as likely to receive their news online.

This amendment does not protect media defendants who refuse to issue a prompt retraction.

Henry said if she were running or advising an online publication, she would inform her staff, before the amendment goes into effect, they’d be able to avail themselves of these protections. Publications should make sure they have a correction policy in place and recognize the importance of procedural deadlines and requirements.

A plaintiff who is seeking retraction must serve a written notice to the publication “specifying the statements claimed to be libelous and demanding that they be corrected” after 20 days of knowledge of the libelous statements.

If the publication issues a retraction, the plaintiff can only recover special damages. If the publication refuses to publish a retraction, the plaintiff can also recover general damages “for loss of reputation, shame, mortification and hurt feelings” and exemplary damages “for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice.”

Monthly publications are also not protected under this amendment. . AB 998 states “it is not the intent of the Legislature that Section 48a of the Civil Code should apply to periodicals that publish at longer than weekly intervals.”

This bill is intended “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.”

AB 998 goes into effect on Jan. 1, 2016.