Why Retractions Must Specifically Identify Each Plaintiff

Retractions matter.

Let me repeat and emphasize.  Retractions really matter.

This is what the owners of the Staples Center in Los Angeles learned yesterday when the California Court of Appeals, Second District, determined that Plaintiffs’ retraction was not sufficiently specific. 

In Anschutze Entertainment Group, INC, et al. v. Frank W. Snepp III, et al., Plaintiffs sued Mr. Snepp, NBC Universal, Inc. and NBC Subsidiary, Inc. (KNBC-TV) for defamation for a television segment, which implied that the Staples Center was unsafe and likely to experience a conflagration.

Defendants filed two special motions to strike (Plaintiffs filed two complaints) and Los Angeles Superior Court Judge Robert Hess denied them both.  Defendants appealed.

The central question on appeal was whether identifying a wholly owned subsidiary in a retraction (and not the parent company) was sufficiently specific to meet the requirements of Civil Code section 48 subdivision (1).  The answer is no.

Civil Code section 48 subdivision (1) states:

In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. 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 the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

So a plaintiff must serve a retraction demand in order to recover general damages.  And trust me, you want  general damages because they’re often the lion’s share of any recovery in a defamation case.

Here, the court of appeal sided with the Defendants for two main reasons: (1) Section 48 subdivision (1) specifically requires the plaintiff to serve the retraction demand; and (2) a legislative purpose of the section is to help the publisher determine if the publication contains an error.

The court held that requiring the potential plaintiff to be named in a retraction demand is consistent with the plain meaning of the statute and furthers an important legislative purpose of the statute.

What do I think?

I think this is a ridiculous decision that exalts form over substance. Failing to include the name of the parent company in the retraction in no way affected Defendants’ ability to determine what to correct, if anything.

The Court of Appeal should not have published this decision and I sincerely hope that the California Supreme Court overrules it soon.

 

 

 

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