On May 20, 2013, Washington Governor Jay Inslee signed into law ESB 5236, a version of the Uniform Correction or Clarification of Defamation Act ("UCCDA"), which provides incentives to publishers and prospective libel plaintiffs to settle their disputes before litigation.
Washington previously had no retraction law, and publishers attempting to correct had to rely on a 1911 decision allowing defendants to plead and prove retractions to mitigate damages. This statutory reform will improve on these uncertain common law benefits.
Washington's legislature modeled the statute after the Uniform Law Commission's UCCDA, proposed in 1993 with support from various sections of the American Bar Association, which just two other states—North Dakota and Texas—have since adopted.2
The Washington law requires plaintiffs to request a correction or clarification before filing a lawsuit. If they do not, they 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. For defendants, moreover, the process is voluntary.
Under the law, a request for a correction or clarification is timely and sufficient if it is made within the statute of limitations for a defamation claim, identifies the person making the request, and specifies the allegedly false statement and why the requester believes it is defamatory or otherwise actionable. If the publisher makes a timely and sufficient correction, the plaintiff may not recover reputational or presumed damages; damages are also limited if, upon request, the plaintiff refuses to disclose evidence of the statements' falsity. The filing of a defamation lawsuit constitutes a request for correction or clarification.
A correction is timely and sufficient if made within 30 days of receipt of a request for correction or clarification or of evidence of falsity and if the correction meets certain specifications. If a publisher misses this deadline, it may offer to settle the dispute after the filing of a lawsuit by publishing a correction and paying the prospective plaintiff's reasonable attorneys' fees incurred before publication of the correction or clarification.
The new law is untested but likely to have a significant effect on defamation actions in Washington State, and may serve as a model for other states seeking to amend their laws to accommodate electronic publications. The statute applies to all publications on or after July 28, 2013.
Originally published in the May 2013 issue of the MLRC MediaLawLetter.
1 Mr. Johnson, Ms. Doran, and Ms. Duran, attorneys at Davis Wright Tremaine LLP in Seattle, were heavily involved, together with Rowland Thompson of Allied Daily Newspapers of Washington, in proposing the new law, advocating its enactment, and drafting and vetting proposed revisions and amendments. They wish to thank DWT partner Dan Waggoner, who helped create the UCCDA as an adviser to its drafting committee, and the other media lawyers (both pro-plaintiff and pro-defense) who were also involved.
2 With backing from Texas attorney Laura Lee Prather, Texas passed a version of the UCCDA: HB1759, which will be codified in the Texas Civil Practice and Remedies Code as Section 73.051 et seq.