House Bill hb1035

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    Florida House of Representatives - 2001                HB 1035

        By Representative Allen






  1                      A bill to be entitled

  2         An act relating to civil actions for libel;

  3         creating s. 770.011, F.S.; creating the "Media

  4         Accuracy and Fairness Act"; providing

  5         definitions; providing scope of the act;

  6         providing circumstances under which a person

  7         may maintain a civil action for defamation;

  8         specifying time limit for timely request of a

  9         correction or clarification; providing criteria

10         for adequacy of correction or clarification;

11         tolling the period of limitation for

12         commencement of a defamation action; providing

13         procedure with respect to disclosure of

14         evidence or falsity with respect to an alleged

15         defamatory statement; providing requirements

16         for timely and sufficient correction or

17         clarification; providing requirements and

18         procedure with respect to challenges to

19         correction or clarification or to a request for

20         correction or clarification; requiring

21         specified notice; providing requirements and

22         procedure with respect to an offer to correct

23         or clarify prior to trial; specifying

24         recoverable costs and damages in actions when

25         an offer to correct or clarify is not accepted;

26         providing for scope of protection with respect

27         to correction or clarification; providing for

28         admissibility of evidence with respect to

29         corrections or clarifications; providing

30         construction; repealing s. 770.01, F.S.,

31         relating to the serving of specified written

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  1         notice as a condition precedent to action or

  2         prosecution for libel or slander; repealing s.

  3         770.02, F.S., relating to correction, apology,

  4         or retraction by a newspaper or broadcast

  5         station for statements in an article or

  6         broadcast alleged to be false and defamatory;

  7         providing severability; providing an effective

  8         date.

  9

10  Be It Enacted by the Legislature of the State of Florida:

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12         Section 1.  Section 770.011, Florida Statutes, is

13  created to read:

14         770.011 Correction or clarification of defamation.--

15         (1)  SHORT TITLE.--This act may be cited as the "Media

16  Accuracy and Fairness Act."

17         (2)  DEFINITIONS.--

18         (a)  "Defamatory" means tending to harm reputation.

19         (b)  "Economic loss" means special, pecuniary loss

20  caused by a false and defamatory publication.

21         (c)  "Person" means an individual, corporation,

22  business trust, estate, trust, partnership, association, joint

23  venture, or other legal or commercial entity. The term does

24  not include a government or governmental subdivision, agency,

25  or instrumentality.

26         (3)  SCOPE.--

27         (a)  This act applies to any claim for relief, however

28  characterized, for damages arising out of harm to personal

29  reputation caused by the false content of a publication that

30  is published on or after the effective date of this act.

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  1         (b)  This act applies to all publications, including

  2  writings, broadcasts, oral communications, electronic

  3  transmissions, or other forms of transmitting information.

  4         (4)  REQUESTS FOR CORRECTION OR CLARIFICATION.--

  5         (a)  A person may maintain an action for defamation

  6  only if:

  7         1.  The person has made a timely and adequate request

  8  for correction or clarification from the defendant; or

  9         2.  The defendant has made a correction or

10  clarification.

11         (b)  A request for correction or clarification is

12  timely if made within the period of limitation for

13  commencement of an action for defamation. However, a person

14  who, within 90 days after knowledge of the publication, fails

15  to make a good-faith attempt to request a correction or

16  clarification may recover only provable economic loss.

17         (c)  A request for correction or clarification is

18  adequate if it:

19         1.  Is made in writing and reasonably identifies the

20  person making the request;

21         2.  Specifies with particularity the statement alleged

22  to be false and defamatory and, to the extent known, the time

23  and place of publication;

24         3.  Alleges the defamatory meaning of the statement;

25         4.  Specifies the circumstances giving rise to any

26  defamatory meaning of the statement which arises from other

27  than the express language of the publication; and

28         5.  States that the alleged defamatory meaning of the

29  statement is false.

30         (d)  In the absence of a previous adequate request,

31  service of a summons and complaint stating a claim for relief

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  1  for defamation and containing the information required in

  2  paragraph (c) constitutes an adequate request for correction

  3  or clarification.

  4         (e)  The period of limitation for commencement of a

  5  defamation action is tolled during the period allowed in

  6  paragraph (7)(a) for responding to a request for correction or

  7  clarification.

  8         (5)  DISCLOSURE OF EVIDENCE OF FALSITY.--

  9         (a)  A person who has been requested to make a

10  correction or clarification may ask the requester to disclose

11  reasonably available information material to the falsity of

12  the allegedly defamatory statement.

13         (b)  If a correction or clarification is not made, a

14  person who unreasonably fails to disclose the information

15  after a request to do so may recover only provable economic

16  loss.

17         (c)  A correction or clarification is timely if

18  published within 25 days after receipt of information

19  disclosed pursuant to paragraph (a) or 45 days after receipt

20  of a request for correction or clarification, whichever is

21  later.

22         (6)  EFFECT OF CORRECTION OR CLARIFICATION.--If a

23  timely and sufficient correction or clarification is made, a

24  person may recover only provable economic loss, as mitigated

25  by the correction or clarification.

26         (7)  TIMELY AND SUFFICIENT CORRECTION OR

27  CLARIFICATION.--

28         (a)  A correction or clarification is timely if it is

29  published before, or within 45 days after, receipt of a

30  request for correction or clarification, unless the period is

31  extended under paragraph (5)(c).

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  1         (b)  A correction or clarification is sufficient if it

  2  is published with a prominence and in a manner and medium

  3  reasonably likely to reach substantially the same audience as

  4  the publication complained of, refers to the statement being

  5  corrected or clarified, and:

  6         1.  Corrects the statement;

  7         2.  In the case of defamatory meaning arising from

  8  other than the express language of the publication, disclaims

  9  an intent to communicate that meaning or to assert its truth;

10  or

11         3.  In the case of a statement attributed to another

12  person, identifies the person, and disclaims an intent to

13  assert the truth of the statement; and

14         4.  Is communicated to the person who has made a

15  request for correction or clarification.

16         (c)  A correction or clarification is published in a

17  medium reasonably likely to reach substantially the same

18  audience as the publication complained of if it is published

19  in a later issue, edition, or broadcast of the original

20  publication.

21         (d)  If a later issue, edition, or broadcast of the

22  original publication will not be published within the time

23  limits established for a timely correction or clarification, a

24  correction or clarification is published in a manner and

25  medium reasonably likely to reach substantially the same

26  audience as the publication complained of if:

27         1.  It is timely published in a reasonably prominent

28  manner:

29         a.  In another medium likely to reach an audience

30  reasonably equivalent to the original publication; or

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  1         b.  If the parties cannot agree on another medium, in

  2  the newspaper with the largest general circulation in the

  3  region in which the original publication was distributed;

  4         2.  Reasonable steps are taken to correct undistributed

  5  copies of the original publication, if any; and

  6         3.  It is published in the next practicable issue,

  7  edition, or broadcast, if any, of the original publication or

  8  broadcast.

  9         (e)  A correction or clarification is timely and

10  sufficient if the parties agree in writing that it is timely

11  and sufficient.

12         (8)  CHALLENGES TO CORRECTION OR CLARIFICATION OR TO

13  REQUEST FOR CORRECTION OR CLARIFICATION.--

14         (a)  If a defendant in an action governed by this act

15  intends to rely on a timely and sufficient correction or

16  clarification, the defendant's intention to do so, and the

17  correction or clarification relied upon, must be set forth in

18  a notice served on the plaintiff within 60 days after service

19  of the summons and complaint or 10 days after the correction

20  or clarification is made, whichever is later. A correction or

21  clarification is deemed to be timely and sufficient unless the

22  plaintiff challenges its timeliness or sufficiency within 20

23  days after the notice is served.

24         (b)  If a defendant in an action governed by this act

25  intends to challenge the adequacy or timeliness of a request

26  for correction or clarification, the defendant must set forth

27  the challenge in a motion to declare the request inadequate or

28  untimely served within 60 days after service of the summons

29  and complaint. The court shall rule on the motion at the

30  earliest appropriate time before trial.

31         (9)  OFFER TO CORRECT OR CLARIFY.--

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  1         (a)  If a timely correction or clarification is no

  2  longer possible, the publisher of an alleged defamatory

  3  statement may offer, at any time before trial, to make a

  4  correction or clarification. The offer must be made in writing

  5  to the person allegedly defamed by the publication and:

  6         1.  Contain the publisher's offer to:

  7         a.  Publish, at the person's request, a sufficient

  8  correction or clarification; and

  9         b.  Pay the person's reasonable expenses of litigation,

10  including attorney's fees, incurred before publication of the

11  correction or clarification; and

12         2.  Be accompanied by a copy of the proposed correction

13  and clarification and the plan for its publication.

14         (b)  If the person accepts in writing an offer to

15  correct or clarify made pursuant to paragraph (a):

16         1.  The person is barred from commencing an action

17  against the publisher based on the statement; or

18         2.  If an action has been commenced, the court shall

19  dismiss the action against the defendant with prejudice after

20  the defendant complies with the terms of the offer.

21         (c)  A person who does not accept an offer made in

22  conformance with paragraph (a) may recover in an action based

23  on the statement only:

24         1.  Damages for provable economic loss; and

25         2.  Reasonable expenses of litigation, including

26  attorney's fees, incurred before the offer, unless the person

27  failed to make a good-faith attempt to request a correction or

28  clarification in accordance with paragraph (4)(b) or failed to

29  disclose information in accordance with subsection (5).

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  1         (d)  On request of either party, a court shall promptly

  2  determine the sufficiency of the offered correction or

  3  clarification.

  4         (e)  The court shall determine the amount of reasonable

  5  expenses of litigation including attorney's fees specified in

  6  sub-subparagraph (a)1.b. and subparagraph (c)2.

  7         (10)  SCOPE OF PROTECTION.--A timely and sufficient

  8  correction or clarification made by a person responsible for a

  9  publication constitutes a correction or clarification made by

10  all persons responsible for that publication other than a

11  republisher. However, a correction or clarification that is

12  sufficient only because of the operation of subparagraph

13  (7)(b)3. does not constitute a correction or clarification

14  made by the person to whom the statement is attributed.

15         (11)  ADMISSIBILITY OF EVIDENCE OF CORRECTION OR

16  CLARIFICATION.--

17         (a)  The fact of a request for correction or

18  clarification under this act, the contents of the request, and

19  its acceptance or refusal are not admissible in evidence at

20  trial.

21         (b)  The fact that a correction or clarification under

22  this act was made and the contents of the correction or

23  clarification are not admissible in evidence at trial except

24  in mitigation of damages pursuant to subsection (6). If the

25  fact that a correction or clarification was made or the

26  contents of the correction or clarification are received in

27  evidence, the fact of the request may also be received.

28         (c)  The fact of an offer of correction or

29  clarification, or the fact of its refusal, and the contents of

30  the offer are not admissible in evidence at trial.

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  1         (12)  UNIFORMITY OF APPLICATION AND CONSTRUCTION.--This

  2  act shall be applied and construed to effectuate its general

  3  purpose to make uniform the law with respect to the subject of

  4  this act among states enacting it.

  5         Section 2.  Sections 770.01 and 770.02, Florida

  6  Statutes, are repealed.

  7         Section 3.  If any provision of this act or the

  8  application thereof to any person or circumstance is held

  9  invalid, the invalidity shall not affect other provisions or

10  applications of the act which can be given effect without the

11  invalid provision or application, and to this end the

12  provisions of this act are declared severable.

13         Section 4.  This act shall take effect upon becoming a

14  law.

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    Florida House of Representatives - 2001                HB 1035

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Creates the "Media Accuracy and Fairness Act." Defines
  4    terms for purposes of the act. Provides scope of the act.
      Provides circumstances under which a person may maintain
  5    a civil action for defamation. Specifies time limit for
      timely request of a correction or clarification and
  6    provides criteria for the adequacy of a correction or
      clarification. Tolls the period of limitation for
  7    commencement of a defamation action. Provides procedure
      with respect to disclosure of evidence or falsity with
  8    respect to an alleged defamatory statement. Provides
      requirements for timely and sufficient correction or
  9    clarification. Provides requirements and procedure with
      respect to challenges to, or a request for, correction or
10    clarification. Requires specified notice. Provides
      requirements and procedure with respect to an offer to
11    correct or clarify prior to trial. Specifies recoverable
      costs and damages in actions when an offer to correct or
12    clarify is not accepted. Provides for scope of protection
      and admissibility of evidence with respect to correction
13    or clarification.

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      Repeals s. 770.01, F.S., relating to the serving of
15    specified written notice as a condition precedent to
      action or prosecution for libel or slander, and s.
16    770.02, F.S., relating to correction, apology, or
      retraction by a newspaper or broadcast station for
17    statements in an article or broadcast alleged to be false
      and defamatory.
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