You Must Move Quickly if a News Publication Defames You

Man with briefcase running to court.

Good evening, Mr. and Mrs. America, from border to border and coast to coast, and all the ships as sea. The year was 1931. The Empire State Building had just been completed, the Star-Spangled Banner was adopted as the Unities States’ national anthem, and Albert Einstein began his research at the California Institute of Technology.

In California, the Legislature decided to encourage the rapid reporting of news by newspapers, by affording them some protections from liability. Civil Code § 48a was passed, and stated:

“In any action for damages for the publication of a libel in a newspaper, if the defendant can show that such libelous matter was published through misinformation or mistake, the plaintiff shall recover no more than actual damages, unless a retraction be demanded and refused as hereinafter provided.”

It was amended in 1945 to add the same protection to news reported on the radio. At that point, television* and the internet did not exist. Magazines existed, but for whatever reason, the legislature elected not to include them.

And there the statute sat for 70 years, protecting only newspapers and radio. This lead to some strange results, as other publications that should logically be afforded the same protections, simply did not fall under the wording of the statute.

For example, in 1976, the National Enquirer published the following about an incident purportedly observed at a Washington D.C restaurant:

“In a Washington restaurant, a boisterous Carol Burnett had a loud argument with another diner, Henry Kissinger. Then she traipsed around the place offering everyone a bite of her dessert. But Carol really raised eyebrows when she accidentally knocked a glass of wine over one diner and started giggling instead of apologizing. The guy wasn’t amused and ‘accidentally’ spilled a glass of water over Carol’s dress.”

Burnett v. Nat’l Enquirer, Inc., 144 Cal. App. 3d 991.

Maintaining the item was entirely false and libelous, an attorney for Ms. Burnett, by telegram the same day and by letter one week later, demanded its correction or retraction “within the time and in the manner provided for in Section 48(a) of the Civil Code of the State of California,” failing which suit would be brought by his client, a well known actress, comedienne and show-business personality.

In response to the demand, The National Enquirer, published the following retraction, again in the gossip column: “An item in this column on March 2 erroneously reported that Carol Burnett had an argument with Henry Kissinger at a Washington restaurant and became boisterous, disturbing other guests. We understand these events did not occur and we are sorry for any embarrassment our report may have caused Miss Burnett.”

Despite the retraction, on April 8, 1976, Burnett tugged on her ear and filed her complaint for libel in the Los Angeles Superior Court. Trial before a jury resulted in an award of $50,000 compensatory and $750,000 punitive damages.

The National Enquirer appealed, claiming that Burnett could not recover the damages, because it had retracted the statement pursuant to section 48a. The issue became whether that publication fell under the statute.

Was the National Enquirer a newspaper?

Because of the wording of Section 48a, deciding whether to demand a retraction requires a bit of strategy, determined by the plaintiff’s goals, and whether the publication falls under that section.

If Burnett just wanted to clear her name, then there was no harm in demanding a retraction. Doing so would afford the publication the opportunity to avoid liability by publishing a retraction, but that would accomplish the goal.

But if Burnett wanted damages (as she apparently did since she sued even after the retraction), then a determination would need to be made as to whether the publication fell under the statute. If it did, then demanding a retraction would put the publication on notice, but that could not be avoided if damages were the goal.

Burnett’s attorneys decided to play it safe, and made the retraction demand. They may have reasoned that even if the National Enquirer retracted the statement, the retraction would be inadequate.

As it turned out, the Court of Appeal concluded that the National Enquirer was not a newspaper within the meaning of the statute, and hence the statute did not apply. Retraction or not, adequate or not, Burnett could recover damages.

Welcome to 2015.

Section 48a was finally amended in 2015 to bring it into a more modern age, but it is still subject to interpretation. For example, “newspaper” was changed to “daily or weekly news publication,” which is then defined as “a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”

So is a blog a news publication under the amended statute? Presumably it would be if it publishes weekly, but do we make that determination by an average publication rate, or must the publication have a set schedule? And what are “matters of public concern”?

Just today I learned of a new (to me) tinfoil hat brigade theory that involves money held in a secret trust by the government for all citizens. File the right paperwork, and it is yours for the taking, or so the claim goes. Is that topic a “matter of public concern”? If someone publishes a daily blog on the secret government trust, and defames you in the process, are you required to demand a retraction under Civil Code § 48a, or forever be precluded from recovering general damages?

I’ll answer that question in a moment, but first, here is the current version of the statute so you’ll have context:

(a) In any action for damages for the publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast, plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section. Plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that those statements be corrected. The notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

(b) If a correction is demanded within 20 days and is not published or broadcast in substantially as conspicuous a manner in the same daily or weekly news publication, or on the same broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after service, plaintiff, if he or she pleads and proves notice, demand and failure to correct, and if his or her cause of action is maintained, may recover general, special, and exemplary damages. Exemplary damages shall not be recovered unless the plaintiff proves that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.

(c) A correction published or broadcast in substantially as conspicuous a manner in the daily or weekly news publication, or on the broadcasting station as the statements claimed in the complaint to be libelous, before receipt of a demand for correction, shall be of the same force and effect as though the correction had been published or broadcast within three weeks after a demand for correction.

(d) As used in this section, the following definitions shall apply:

(1) “General damages” means damages for loss of reputation, shame, mortification, and hurt feelings.

(2) “Special damages” means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other.

(3) “Exemplary damages” means damages that 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.

(4) “Actual malice” means that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.

(5) “Daily or weekly news publication” means a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.

As you can see, failing to make a retraction demand in just 20 days prevents the plaintiff from recovering general damages, if the publication falls under the statute. General damages are defined by the statute. In most defamation actions, general damages are the bulk of the damages.

Often, a plaintiff cannot prove special damages – those actual monetary damages suffered as a result of the defamation. If the plaintiff was, say, fired as a result, the loss of wages would be special damages. But most claims are based on loss of reputation and shame. The jury can set a value to those intangibles based on the perceived harm, even if no actual monetary damages are shown. The jury can also sweeten the pot with punitive (exemplary) damages. But general and punitive damages will be unavailable if no retraction demand was made.

So that is one to do?

The answer is therefore simple. Just as was done in the Carol Burnett case, if unsure whether the publication will fall under Section 48a, make the retraction demand. In our blogging hypothetical, the blogger will likely be clueless that you are protecting yourself under Section 48a, and do nothing. But you will have removed any later argument that you were required to make the demand, and all forms of damages will remain open to you.


* Television was invented in 1928, but did not become commonplace in American homes until the 1950s.

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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