On July 28, 2013, Washington’s version of the Uniform Correction or Clarification of Defamation Act will take effect. Designed to give incentives to publishers and prospective libel plaintiffs to settle their disputes before litigation, the statute creates a framework that requires a plaintiff to request a correction or clarification before (or at the time of) filing a lawsuit. One who fails to do so cannot recover reputational or presumed damages at trial. The statute applies not just to defamation lawsuits, but to any claim targeted at an allegedly false statement. And perhaps most notably—unlike most state retraction laws—it expressly applies to all electronic publications.
This piece provides a brief summary of the law and the key factors a publisher or broadcaster should consider upon receiving a complaint that a broadcast or article contains a false statement.
What triggers application of the law? Because the statute applies to any claim based on an allegedly false statement, you should immediately consider your options under the new law upon receiving a complaint about such a statement, coupled with any request that you publish or air a correction or clarification. A lawsuit satisfies this requirement.
What do you do upon receiving a request for correction or retraction? Within thirty days of receiving the request, you must either (1) issue a correction or clarification or (2) ask the complaining party for evidence of or information supporting his or her claim that the statement is false.
If you issue an adequate correction (whether upon a request or even without any notice), the plaintiff cannot recover reputational or presumed damages.
If you ask for evidence of falsity, the outcome depends on the person’s response. If the person does not respond, he or she cannot recover reputational or presumed damages. If he or she does respond, you must issue an adequate correction within thirty days to take advantage of the statute’s protections.
What constitutes an adequate correction? Under the statute, a correction must (1) be published with a prominence and in a manner and medium likely to reach the same audience as the complained of statement (as further defined in the statute); (2) correct the statement (with special rules that apply to allegedly false implications and statements attributed to third parties); (3) be provided in advance of publication to the person who made the request (although the person need not approve it beforehand); and (4) accompany and be an equally prominent part of the publisher’s electronic publication (if any).
What happens if a publisher or broadcaster misses the deadline to issue a correction? If more than thirty days have passed, you may still invoke the statute by offering to publish a correction and pay the person’s legal expenses. If the person accepts your offer, he or she may not file a lawsuit about it. If the person rejects your offer, he or she may not recover reputational or presumed damages.
The authors, lawyers at Davis Wright Tremaine LLP in Seattle, were heavily involved in drafting and advocating for the new law.