What Factors Determine Whether a Web Publisher Is Entitled to Protections in California?

by

Larry Drexel

California, as well as most other states, has rules in place providing special protections for journalists. Limiting the risk of personal liability for journalists from the potentially injurious consequences of defamation lawsuits is essential to protecting true freedom of the press, explains an attorney. However, questions have arisen regarding whether such professional protections should extend to all publishers of web content, including bloggers.

Liability for Defamation In California, as well as in other states, the law recognizes the importance and value of a person’s good name. As such, defamation is a tort claim that provides a plaintiff with a legal remedy for damage to his or her reputation. Defamation can take the form of slander, which is an untrue and damaging claim made via spoken word, sounds, sign language or gestures. It can also take the form of libel, which is based on published statements. In order for a claim of defamation to be made, the claim or damaging statement giving rise to the lawsuit must be false, and it must be made as though it were true. The claim must also have been made to people other than the person or entity being defamed. In most cases, actual damages must be proven, although there are certain statements considered defamatory per se, which means that damages are assumed. Although defamation claims can be difficult to prove in many cases due to the difficulty of proving or quantifying damages, defamation lawsuits have, at times, put major newspapers at risk. As such, courts and legislatures have imposed certain limitations on defamation lawsuits. In a case called New York Times Co. v. Sullivan, for example, the court established a more stringent standard for public figures to claim defamation, requiring actual malice on the part of the defendant. Actual malice is a standard stipulating that the defendant must have made the harmful statements knowing they were false or with reckless disregard as to their truth. Many states also have “retraction laws” that protect a newspaper or journalist from liability for defamation unless an opportunity has first been provided to retract the false statements. For instance, under California’s retraction statute (Cal. Civ. Code section 48a), a plaintiff has a period of 20 days to make a request for retraction after discovering an allegedly defamatory statement. All requests for retraction are required to be in writing and specify which statements the plaintiff is claiming are defamatory. The request must also include a demand that a retraction be made. Upon receipt of a retraction request, a newspaper must publish a retraction within three weeks and must publish it in a manner that is “substantially as conspicuous” as the original claims. For instance, if the story was on the front page, the retraction must also be on the front page. When a defendant makes a retraction as required under the retraction laws, a plaintiff’s damages for defamation are limited to actual economic losses and do not include either punitive damages or general damages for loss of reputation. Finally, in addiction to retraction laws and tougher standards for defamation in most cases, journalists are also protected from being held in contempt of court for failure to reveal a confidential source. These protections come in the form of state laws called “shield laws.” Since the advent of the Internet, news content has increasingly been distributed online. Established news agencies, however, are not the only purveyors of information anymore: people have more access to content and greater capability to create and disseminate it, as evidenced by the proliferation of blogs. In recent years, as bloggers have been targeted with defamation lawsuits, the question has arisen as to whether they are personally entitled to the same protections from the potentially injurious consequences of such legal actions as journalists, explains an attorney. Rulings made in California courts have tended to focus more on the content and its purpose than on the author and his or her affiliations to established news organizations. The 2002 case of Condit v. National Enquirer Inc set the precedent that the state’s retraction laws protect publishers engaged in the ‘immediate dissemination of news,’ while the court, in O’Grady v. Superior Court, found that those who collect news to convey to the public are considered to be reporters and thus protected under the state’s shield laws. Given these rulings, whether or not web publishers are afforded protections under the law is dependant more on the content they disseminate to the public than their professional status.

Larry Drexel is a Public Relations manager. To obtain free, informative books or articles he suggests visiting

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What Factors Determine Whether a Web Publisher Is Entitled to Protections in California?