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Model defamation reform slow to catch on

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From the Spring 2003 issue of The News Media & The Law, page 27.

From the Spring 2003 issue of The News Media & The Law, page 27.

By Wendy Tannenbaum

It has been almost ten years since the American Bar Association approved a uniform law that some media advocates hailed as a reform that would minimize the burdens of defamation lawsuits.

The Uniform Correction or Clarification of Defamation Act was intended to spark an across-the-board change in the way libel lawsuits are litigated in the United States. The drafters, among them prominent media attorneys with the interests of journalists in mind, hoped the model law would be adopted quickly in every state, providing a uniform set of standards that defamation plaintiffs and defendants throughout the country could follow.

Since it was drafted in 1993, however, only one state has adopted the law, and other states that have considered it have shown significant reluctance to enact a model statute that would, in many cases, drastically change their own defamation laws. And efforts this year in Texas and Michigan have failed to grab the attention of legislators.

Developing the law

The UCCDA was formulated in the early 1990s after another draft model law, the proposed Uniform Defamation Act, was widely criticized for being too restrictive on the media.

Eager for reform that would help both parties to a defamation lawsuit, the drafters scrapped the idea for broad defamation changes and came up with a model law focusing on requests for retractions or corrections.

According to commentary from its drafters, the UCCDA “seeks to remedy

. . . flaws in current law by providing strong incentives for the parties in a defamation suit promptly to correct or clarify the alleged defamation as an alternative to costly litigation.”

“It was all part of this compromise,” said Barbara Wartelle Wall, senior legal counsel at Gannett Co., Inc., who was involved in the initial push for the legislation. The drafters balanced the interests of the press against those of defamation plaintiffs, and what they came up with was the UCCDA.

The end result was “pretty darn favorable to the press in that respect,” Wall said.

The model law prescribes certain procedures that must be followed before a libel suit is initiated.

The model law requires every potential plaintiff to request a correction or clarification from the media organization that allegedly has published a defamatory statement. The plaintiff must be willing to provide the news organization with evidence that the allegedly defamatory statement or statements are false. If the request is not filed within 90 days of publication, the plaintiffs may still sue but can recover only for “provable economic loss” if they win the lawsuit. Recovery for injury to reputation and for punitive damages is prohibited.

After a request for correction or clarification has been made, the media entity has 45 days to publish the requested change. A correction must be published with the same prominence as the original article and must be aimed at the same audience.

Once a correction is published, if the plaintiff continues with a lawsuit, neither the correction nor the fact that a correction has been published may be used as evidence at trial, except to prove that damages have been mitigated.

The UCCDA covers print, broadcast, cable and Internet media, as well as books.

The aims of the UCCDA are clear from its requirements.

First, it attempts to limit the number of libel lawsuits filed against the media by encouraging resolution of the conflict out of court. Even when lawsuits are filed, the potential liability for the media is limited.

Second, the model law eliminates an important disincentive of publishing retractions by allowing media organizations to publish retractions without having to explain the correction in court.

Third, the law lays out specific guidelines for publication of corrections and clarifications. The rules are intended to give the parties less leeway to haggle over the details of a proposed retraction.

Finally, if the UCCDA were ever widely adopted, publishers would be able to predict with uniformity the way claims against them would be handled in each state. This is particularly important for media entities with operations in numerous locations, which now are required to know and comply with different legal requirements for each state in which they operate.

Criticism and concerns

While the UCCDA has not been highly controversial, some say the model act disfavors plaintiffs because it puts a potential libel claim in the control of the defendant and eliminates damages for reputational harm. The act also has come under fire for being too vague and too limited in its scope.

Concerned media advocates have said the UCCDA may work to the disadvantage of individual journalists.

In an article on libel reform published in 1995 in The University of Hawaii Law Review, M. Linda Dragas summed up the complaint: “From the media’s point of view, the concern is that there will be intense pressure to publish a ‘correction’ quickly in order to abort a potential libel suit. The Act may encourage hasty judgments about the statement’s accuracy and, in the process, sacrifice a reporter’s reputation and the media’s credibility on the altar of expediency.”

Former executive director of The Reporters Committee for Freedom of the Press Jane E. Kirtley voiced similar concerns when the UCCDA was first developed. Now a journalism professor at the University of Minnesota, Kirtley worried that the proposed law might encourage media management to pressure reporters to unnecessarily retract statements or reveal their sources.

Many press advocates, however, believe getting the UCCDA passed would have a positive result for the news media in most states.

Over the years, the UCCDA has been endorsed by the American Society of Newspaper Editors, the Associated Press Managing Editors, the Newspaper Association of America, the National Newspaper Association, and the Media Law Resource Center (formerly known as the Libel Defense Resource Center). It remains a topic of interest in most of these organizations, according to Tonda Rush, an attorney for the NNA and a media consultant who has actively pushed for passage of the act.

Whether the UCCDA is good for a particular state may depend on existing law in that state. Some states already have laws governing pre-libel suit retractions, in which case the existing law may provide stronger protection than the UCCDA.

One ongoing concern, according to Gannett’s Wall, is that legislatures considering the UCCDA may modify the language of the bill so that it no longer provides adequate protection for the media.

“That’s always been a risk,” Wall said. Allowing changes to the bill would not only erode media protections but would also undermine the goal of eventually providing uniformity among the states.

States lag

Because the UCCDA is only a model law, states have complete discretion in deciding whether to adopt it.

Thus far, only North Dakota has adopted the UCCDA.

According to Rush, the model law has been introduced over the years in Texas, New York, South Dakota, New Mexico and Florida. Michigan, too, has seen a push for the legislation.

Rush said the lack of interest in the UCCDA in recent years may be attributed to the economy and a preoccupation among press organizations with other media law issues.

“Because of the priority given to budget-related issues and taxes this year, and open records issues since 2001, UCCDA has not been on the front burner in any state,” Rush said.

Recent legislative efforts in Michigan and Texas illustrate the states’ lack of attention to matters of libel reform.

The Michigan Press Association lobbied its legislature to adopt the act this year. An extensive guide posted on the organization’s Web site listed “12 reasons why the UCCDA is good for Michigan.”

Among the reasons enumerated were three ways the act could save media companies money. The organization said the statute would cut litigation costs by reducing the number of libel suits, reduce the need for libel insurance, and limit damages in cases that did go to trial to strict economic losses.

The Michigan association also said passage of the UCCDA in Michigan and other states would promote the “good public policy” of establishing “uniform libel laws to protect publishers whose content may cross state boundaries.” The Web site said such uniform laws are especially necessary “in this era of multi-jurisdictional publications and with the increasing influence of Internet publishing.”

The Web site summarized the state’s current defamation laws and concluded that the media would benefit if the legislature replaced those laws with the UCCDA.

Despite the association’s campaign, however, the UCCDA failed to catch the eye of legislators.

“We shopped the bill to several legislators and potential interest group allies for the last two sessions and got nowhere,” said Mike MacLaren, executive director of the Michigan Press Association. “I don’t see it being resurrected any time soon.”

In Texas, a bill containing the UCCDA provisions has been in the legislature since the beginning of the year.

State press groups originally opposed the bill, but Donnis Baggett, chair of the joint legislative advisory committee of the Texas Daily Press Association and the Texas Press Association, has reconsidered that position.

“I had concerns about whether a plaintiff’s lawyer could beat you to death with it,” Baggett said. But he revised his view after reading the bill more closely and now supports its passage.

The Texas bill was assigned to the House Civil Practices Committee on March 18, and the committee heard testimony on the bill. As of the end of April, it had not moved out of committee.

Ed Sterling of the Texas Press Association guessed that the UCCDA might be stalled because it is too “arcane or too far out of the normal frames of reference for lawmakers on the committee.”

He said it is possible that the bill was only introduced to give its sponsor, Rep. Frank Corte, good publicity. “Maybe he thought this bill would get him a lot of easy lineage on the editorial pages, or at least a lot of talk in editorial board meetings,” Sterling said.

Texas currently does not have a retraction statute.

In the one state where the UCCDA is law — North Dakota — reports so far are positive.

Media attorney Jack McDonald said that while North Dakota is not a particularly litigious state to begin with, the UCCDA has appeared to serve its purpose of deterring extraneous lawsuits against the media. He said he and his clients have used the provisions of the act on numerous occasions since it became effective in 1995.

Few of cases in which the act has been used have resulted in contentious litigation. A search of legal databases shows that since the UCCDA became law in the state, it has led to only one reported decision by an appellate court.

McDonald, who participated in the lobbying effort to get the UCCDA passed, said he encouraged North Dakota legislators to see it as “consumer-friendly” legislation.

“Usually people don’t want a lawsuit,” McDonald said. The UCCDA helps plaintiffs obtain corrections or clarifications they want while reducing the burden on media entities who would otherwise be sued, he said. u