ESB 5236 -
By Committee on Judiciary
ADOPTED AND ENGROSSED 04/12/2013
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1
"Person" means an individual, corporation, business trust, estate,
trust, partnership, association, joint venture, or other legal or
commercial entity. The term does not include a government or
governmental subdivision, agency, or instrumentality.
NEW SECTION. Sec. 2
(2) This chapter applies to all publications, including writings,
broadcasts, oral communications, electronic transmissions, or other
forms of transmitting information.
NEW SECTION. Sec. 3
(a) The person has made a timely and adequate request for
correction or clarification from the defendant; or
(b) The defendant has made a correction or clarification.
(2) A request for correction or clarification is timely if made
within the period of limitation for commencement of an action for
defamation. However, a person who, within ninety days after knowledge
of the publication, fails to make a good-faith attempt to request a
correction or clarification may not recover damages for injury to
reputation or presumed damages; however, the person may recover all
other damages permitted by law.
(3) A request for correction or clarification is adequate if it:
(a) Is made in writing and reasonably identifies the person making
the request;
(b) Specifies with particularity the statement alleged to be false
and defamatory and, to the extent known, the time and place of
publication;
(c) Alleges the defamatory meaning of the statement;
(d) Specifies the circumstances giving rise to any defamatory
meaning of the statement which arises from other than the express
language of the publication; and
(e) States that the alleged defamatory meaning of the statement is
false.
(4) In the absence of a previous adequate request, service of a
summons and complaint stating a claim for relief for defamation and
containing the information required in subsection (3) of this section
constitutes an adequate request for correction or clarification.
NEW SECTION. Sec. 4
(2) If a correction or clarification is not made, a person who
unreasonably fails to disclose the information after a request to do so
may not recover damages for injury to reputation or presumed damages;
however, the person may recover all other damages permitted by law.
NEW SECTION. Sec. 5
NEW SECTION. Sec. 6
(2) A correction or clarification is sufficient if it:
(a) Is published with a prominence and in a manner and medium
reasonably likely to reach substantially the same audience as the
publication complained of;
(b) Refers to the statement being corrected or clarified and:
(i) Corrects the statement;
(ii) In the case of defamatory meaning arising from other than the
express language of the publication, disclaims an intent to communicate
that meaning or to assert its truth; or
(iii) In the case of a statement attributed to another person,
identifies the person and disclaims an intent to assert the truth of
the statement;
(c) Is communicated to the person who has made a request for
correction or clarification; and
(d) Accompanies and is an equally prominent part of any electronic
publication of the allegedly defamatory statement by the publisher.
(3) A correction or clarification is published in a medium
reasonably likely to reach substantially the same audience as the
publication complained of if it is published in a later issue, edition,
or broadcast of the original publication.
(4) If a later issue, edition, or broadcast of the original
publication will not be published within the time limits established
for a timely correction or clarification, a correction or clarification
is published in a manner and medium reasonably likely to reach
substantially the same audience as the publication complained of if:
(a) It is timely published in a reasonably prominent manner:
(i) In another medium likely to reach an audience reasonably
equivalent to the original publication; or
(ii) If the parties cannot agree on another medium, in the
newspaper with the largest general circulation in the region in which
the original publication was distributed;
(b) Reasonable steps are taken to correct undistributed copies of
the original publication, if any; and
(c) It is published in the next practicable issue, edition, or
broadcast, if any, of the original publication.
(5) A correction or clarification is timely and sufficient if the
parties agree in writing that it is timely and sufficient.
NEW SECTION. Sec. 7
(2) If a defendant in an action governed by this chapter intends to
challenge the adequacy or timeliness of a request for correction or
clarification, the defendant must set forth the challenge in a motion
to declare the request inadequate or untimely served within sixty days
after service of the summons and complaint. The court shall rule on
the motion at the earliest appropriate time before trial.
NEW SECTION. Sec. 8
(a) Contain the publisher's offer to:
(i) Publish, at the person's request, a sufficient correction or
clarification; and
(ii) Pay the person's reasonable expenses of litigation, including
attorneys' fees, incurred before publication of the correction or
clarification; and
(b) Be accompanied by a copy of the proposed correction or
clarification and the plan for its publication.
(2) If the person accepts in writing an offer to correct or clarify
made pursuant to subsection (1) of this section:
(a) The person is barred from commencing an action against the
publisher based on the statement; or
(b) If an action has been commenced, the court shall dismiss the
action against the defendant with prejudice after the defendant
complies with the terms of the offer.
(3) A person who does not accept an offer made in conformance with
subsection (1) of this section may not recover damages for injury to
reputation or presumed damages in an action based on the statement;
however, the person may recover all other damages permitted by law, as
well as reasonable expenses of litigation, including attorneys' fees,
incurred before the offer, unless the person failed to make a good-faith attempt to request a correction or clarification in accordance
with section 3(2) of this act or failed to disclose information in
accordance with section 4 of this act.
(4) On request of either party, a court shall promptly determine
the sufficiency of the offered correction or clarification.
NEW SECTION. Sec. 9
NEW SECTION. Sec. 10
NEW SECTION. Sec. 11
NEW SECTION. Sec. 12 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 13 Sections 1 through 11 of this act
constitute a new chapter in Title
Correct the title.