Defamation – Demand, Correction, and General, Special and Exemplary Damages

Under California Civil Code Section 48a, “[i]n 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 is required to serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice 1) specifying the statements claimed to be libelous and 2) demanding that those statements be corrected.

A Section 48a demand to be timely must be made within 20 days from the date knowledge of the publication is obtained. That is not necessarily the date of the publication itself. Section 48a recognizes that it takes time for the publication’s contents to disseminate. Section 48a states, “The notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.” Civ. C. 48a(a).

Correction is to be made in substantially as conspicuous a manner in the same daily or weekly publication or broadcast as the statements claimed to be libelous in a regular issue published or broadcast within three weeks after service of the demand. An aggrieved plaintiff can file a complaint setting forth notice, demand and failure to correct, and if his or her cause of action is maintained, that plaintiff may recover general, special, and exemplary damages.

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

“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.

“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.

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.

“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.

If a correction is made in substantially as conspicuous a manner in the daily or weekly news publication or broadcast as the statements claimed in the complaint to be libelous before receiving the demand for correction, that correction will moot the need for subsequent correction.

“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.

Attorney Michael A. Long is experienced as replacement counsel. He has represented attorneys, executives, business owners, producers, tech companies, engineers, inventors, employees, employers, and established multinational clients with worldwide IP portfolios.

Michael A. Long, Long & Associates