California Civil Jury Instructions (CACI)
1722. Retraction: Newspaper or Broadcast (Civ. Code, § 48a)
Because [name of defendant] is a [newspaper/broadcaster], [name of plaintiff] may recover only the following:
(a) Damages to property, business, trade, profession, or occupation; and
(b) Damages for money spent as a result of the defamation.
However, this limitation does not apply if [name of plaintiff] proves both of the following:
1. That [name of plaintiff] demanded a correction of the statement within 20 days of discovering the statement; and
2. That [name of defendant] did not publish an adequate correction;
That [name of defendant]’s correction was not substantially as conspicuous as the original [publication/broadcast];
That [name of defendant]’s correction was not [published/ broadcast] within three weeks of [name of plaintiff]’s demand.
Directions for Use
The judge should decide whether the demand for a retraction was served in compliance with the statute. (O’Hara v. Storer Communications, Inc. (1991) 231 Cal.App.3d 1101, 1110 [282 Cal.Rptr. 712].)
Sources and Authority
- Civil Code section 48a provides:
(1) In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.
(2) If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove 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.
(3) A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.
(4) [Definitions.] As used herein, the terms “general damages,” “special damages,” “exemplary damages” and “actual malice,” are defined as follows:
(a) “General damages” are damages for loss of reputation, shame, mortification and hurt feelings;
(b) “Special damages” are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;
(c) “Exemplary damages” are damages which 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;
(d) “Actual malice” is that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such 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.
- “Under California law, a newspaper gains immunity from liability for all but ‘special damages’ when it prints a retraction satisfying the requirements of section 48a.” (Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626, 1631 [263 Cal.Rptr. 410]; see also Twin Coast Newspapers, Inc. v. Superior Court (1989) 208 Cal.App.3d 656, 660—661 [256 Cal.Rptr. 310].)
- “An equivocal or incomplete retraction obviously serves no purpose even if it is published in ‘substantially as conspicuous a manner . . . as were the statements claimed to be libelous.’ ” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1011 [283 Cal.Rptr. 644].)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 629—639
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.24 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.53 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), § 142.37 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 21:55—21:57