Note: This page covers information specific to California and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.
California has a retraction statute, Cal. Civ. Code § 48a, that applies to the "publication of libel in a newspaper" or "slander by radio broadcast." Although the statute does not specifically state whether it covers online publications, two recent court decisions suggest that an online publisher may be covered by the statute if the publisher's main focus is the rapid dissemination of news.
In the first case, a federal court interpreting California law observed that the legislature passed the retraction statute to protect publishing enterprises that engage "in the immediate dissemination of news," because such enterprises "cannot always check their sources for accuracy and their stories for inadvertent publication errors." Condit v. National Enquirer, Inc., 248 F. Supp. 2d 945, 955 (2002). The court concluded that the National Enquirer, which published the statements at issue in print and online, was not covered by the retraction statute because its primary focus was not the rapid dissemination of news. Thus the court held that the National Enquirer had time to verify the truth of the allegations before publishing the statements.
The federal court's definition of "newspaper" in the National Enquirer case dovetails with an important state appellate court decision referring to "reporters" as persons gathering news for dissemination to the public online. O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006). In that case, Jason O'Grady operated an "online news magazine" about Apple in which he published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court concluded that the state shield law applied to O'Grady because he engaged in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." For more on the O'Grady case, see the Apple v. Does entry in the CMLP database. Taken together, the O'Grady and Condit decisions suggest that future courts may be willing to apply the state's retraction law to an online work depending on the nature of the publication.
Although O'Grady involves California's shield law, both the O'Grady and the Condit decisions suggest that future courts may be willing to entertain the possibility that the state's retraction law applies to an online publication if the main focus of the publication is the rapid dissemination of news.
Handling Requests to Remove or Retract Material in California
If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the California retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.
Under the California retraction statute:
- A plaintiff has twenty days after discovering an allegedly libelous statement to serve a request for retraction;
- The request must be in writing and must specify the statements claimed to be libelous and demand that they be corrected; and
- Once the publisher receives the retraction request, it has three weeks to publish a retraction in a manner that is "substantially as conspicuous" as the original published statements.
If you comply with these procedures after receiving a retraction request (or the plaintiff fails to ask for a retraction as required under the statute) and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages.
Even if your online publishing activities do not fall within the scope of California's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.