Senate Bill sb1628c1

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    Florida Senate - 2001                           CS for SB 1628

    By the Committee on Judiciary and Senator Bronson





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  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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    Florida Senate - 2001                           CS for SB 1628
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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.--As used in this section, the term:

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. In the application of this section,

26  persons deemed to be "public figures" and "public figures for

27  limited purposes" under existing provisions of common law

28  shall be afforded the same protections from defamation as

29  persons not so deemed.

30         (3)  SCOPE.--

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    Florida Senate - 2001                           CS for SB 1628
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  1         (a)  This act applies to any claim for relief, however

  2  characterized, for damages arising out of harm to personal

  3  reputation caused by the false content of a publication that

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

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

  6  writings, broadcasts, oral communications, electronic

  7  transmissions, or other forms of transmitting information.

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

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

10  only if:

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

12  for correction or clarification from the defendant; or

13         2.  The defendant has made a correction or

14  clarification.

15         (b)  A request for correction or clarification is

16  timely if made within the period of limitation for

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

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

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

20  clarification may recover only provable economic loss and

21  reasonable compensation for injury to reputation.

22         (c)  A request for correction or clarification is

23  adequate if it:

24         1.  Is made in writing and reasonably identifies the

25  person making the request;

26         2.  Specifies with particularity the statement alleged

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

28  and place of publication;

29         3.  Alleges the defamatory meaning of the statement;

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    Florida Senate - 2001                           CS for SB 1628
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  1         4.  Specifies the circumstances giving rise to any

  2  defamatory meaning of the statement which arises from other

  3  than the express language of the publication; and

  4         5.  States that the alleged defamatory meaning of the

  5  statement is false.

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

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

  8  for defamation and containing the information required in

  9  paragraph (c) constitutes an adequate request for correction

10  or clarification.

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

12  defamation action is tolled during the period allowed in

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

14  clarification.

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

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

17  correction or clarification may ask the requester to disclose

18  reasonably available information material to the falsity of

19  the allegedly defamatory statement.

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

21  person who unreasonably fails to disclose the information

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

23  loss.

24         (c)  A correction or clarification is timely if

25  published within 25 days after receipt of information

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

27  of a request for correction or clarification, whichever is

28  later.

29         (6)  EFFECT OF CORRECTION OR CLARIFICATION.--Except in

30  cases of a publication made with malice, in bad faith, or with

31  gross negligence, if a timely and sufficient correction or

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    Florida Senate - 2001                           CS for SB 1628
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  1  clarification is made, a person may recover only provable

  2  economic loss and reasonable compensation for injury to

  3  reputation, as mitigated by the correction or clarification.

  4         (7)  TIMELY AND SUFFICIENT CORRECTION OR

  5  CLARIFICATION.--

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

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

  8  request for correction or clarification, unless the period is

  9  extended under paragraph (5)(c).

10         (b)  A request for a correction or clarification of a

11  communication concerning a candidate for a local, state, or

12  federal office made for purposes of influencing the outcome of

13  an election must be made within 96 hours after knowledge of

14  the publication of the statement. If a correction or

15  clarification designed to reach substantially the same

16  audience as referred to in paragraph (d) is made in a timely

17  manner before the day of the election, the plaintiff's damages

18  shall be limited to the economic loss.

19         (c)  A correction or clarification is sufficient if it

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

21  reasonably likely to reach substantially the same audience as

22  the publication complained of, refers to the statement being

23  corrected or clarified, and:

24         1.  Corrects the statement;

25         2.  In the case of defamatory meaning arising from

26  other than the express language of the publication, disclaims

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

28  or

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

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

31  assert the truth of the statement; and

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    Florida Senate - 2001                           CS for SB 1628
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  1         4.  Is communicated to the person who has made a

  2  request for correction or clarification.

  3         (d)  A correction or clarification is published in a

  4  medium reasonably likely to reach substantially the same

  5  audience as the publication complained of if it is published

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

  7  publication.

  8         (e)  If a later issue, edition, or broadcast of the

  9  original publication will not be published within the time

10  limits established for a timely correction or clarification, a

11  correction or clarification is published in a manner and

12  medium reasonably likely to reach substantially the same

13  audience as the publication complained of if:

14         1.  It is timely published in a reasonably prominent

15  manner:

16         a.  In another medium likely to reach an audience

17  reasonably equivalent to that of the original publication; or

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

19  the newspaper with the largest general circulation in the

20  region in which the original publication was distributed;

21         2.  Reasonable steps are taken to correct undistributed

22  copies of the original publication, if any; and

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

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

25  broadcast.

26         (f)  A correction or clarification is timely and

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

28  and sufficient.

29         (8)  CHALLENGES TO CORRECTION OR CLARIFICATION OR TO

30  REQUEST FOR CORRECTION OR CLARIFICATION.--

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    Florida Senate - 2001                           CS for SB 1628
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  1         (a)  If a defendant in an action governed by this act

  2  intends to rely on a timely and sufficient correction or

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

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

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

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

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

  8  clarification is deemed to be timely and sufficient unless the

  9  plaintiff challenges its timeliness or sufficiency within 20

10  days after the notice is served.

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

12  intends to challenge the adequacy or timeliness of a request

13  for correction or clarification, the defendant must set forth

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

15  untimely served within 60 days after service of the summons

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

17  earliest appropriate time before trial.

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

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

20  longer possible, the publisher of an alleged defamatory

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

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

23  to the person allegedly defamed by the publication and:

24         1.  Contain the publisher's offer to:

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

26  correction or clarification; and

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

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

29  correction or clarification; and

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

31  and clarification and the plan for its publication.

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    Florida Senate - 2001                           CS for SB 1628
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  1         (b)  If the person accepts in writing an offer to

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

  3         1.  The person is barred from commencing an action

  4  against the publisher based on the statement; or

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

  6  dismiss the action against the defendant with prejudice after

  7  the defendant complies with the terms of the offer, except in

  8  cases of a publication made with malice, in bad faith, or with

  9  gross negligence.

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

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

12  on the statement only:

13         1.  Damages for provable economic loss and reasonable

14  compensation for injury to reputation, except in cases of a

15  publication made with malice, in bad faith, or with gross

16  negligence; and

17         2.  Reasonable expenses of litigation, including

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

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

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

21  disclose information in accordance with subsection (5).

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

23  determine the sufficiency of the offered correction or

24  clarification.

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

26  expenses of litigation including attorney's fees specified in

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

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

29  correction or clarification made by a person responsible for a

30  publication constitutes a correction or clarification made by

31  all persons responsible for that publication other than a

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    Florida Senate - 2001                           CS for SB 1628
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  1  republisher. However, a correction or clarification that is

  2  sufficient only because of the operation of subparagraph

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

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

  5         (11)  ADMISSIBILITY OF EVIDENCE OF CORRECTION OR

  6  CLARIFICATION.--

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

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

  9  its acceptance or refusal are not admissible in evidence at

10  trial.

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

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

13  clarification are not admissible in evidence at trial except

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

15  fact that a correction or clarification was made or the

16  contents of the correction or clarification are received in

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

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

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

20  the offer are not admissible in evidence at trial.

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

22  act shall be applied and construed to effectuate its general

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

24  this act among states enacting it.

25         Section 2.  Sections 770.01 and 770.02, Florida

26  Statutes, are repealed.

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

28  application thereof to any person or circumstance is held

29  invalid, the invalidity shall not affect other provisions or

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

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    Florida Senate - 2001                           CS for SB 1628
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  1  invalid provision or application, and to this end the

  2  provisions of this act are declared severable.

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

  4  law.

  5

  6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  7                             SB 1628

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  9  Renames the bill as the "Media Accuracy and Fairness Act".

10  Adds limited recovery for reasonable compensation for injury
    to reputation under specified circumstances;
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    Provides exception for limit on recovery if the case involves
12  libel or slander made with malice, in bad faith, or with gross
    negligence;
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    Provides an expedited time period for making a correction or
14  clarification when a local, state, or federal public office
    candidate is involved;
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    Affords the protections from defamation to "public figures"
16  and "public figures" for limited purposes as are afforded to
    private individuals.
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