The Volokh Conspiracy - Online Libel and Retractions in Tennessee:

InstaPundit (who's a constitutional law professor at the University of Tennessee and his fellow Tennesseean Bill Hobbs have been criticizing a proposed bill imposing special retraction obligations on Web speakers:

An owner or licensee of a web site or web page shall have fifteen (15) days to remove any defamatory statements about a person from such web site or web page; however if the owner or licensee has been given notice that such statements are defamatory then that owner or licensee shall have two (2) days from the date of the notice to remove the statements from the web site or web page, whichever is less. Failure to remove defamatory statements as provided in this section shall create a presumption of malice intent.

The bill was then withdrawn but its backer is saying he'll bring back something else having to do with online libel. It's hard to tell exactly what this bill would do, but it seems likely that it would violate the First Amendment and probably 47 U.S.C. § 230, the federal statute that immunizes web page operators from liability for material posted to their pages by others. (Jack Balkin agrees on the § 230 question.)

But if Tennessee legislators want to do something about online libel and retractions, why not look at Tenn. Code Ann. § 29-24-103?

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well?

The retraction statute already might cover bloggers, if you read "periodical" to include blogs, as a California Court of Appeal decision does. But given that the matter is not completely clear, it would be good if Tennessee legislators — and legislators in other states that have similar laws — made it clear.

	[Eugene Volokh, February 5, 2007 at 9:17am] Trackbacks Online Libel and Retractions in Tennessee: InstaPundit (who's a constitutional law professor at the University of Tennessee and his fellow Tennesseean Bill Hobbs have been criticizing a proposed bill imposing special retraction obligations on Web speakers: An owner or licensee of a web site or web page shall have fifteen (15) days to remove any defamatory statements about a person from such web site or web page; however if the owner or licensee has been given notice that such statements are defamatory then that owner or licensee shall have two (2) days from the date of the notice to remove the statements from the web site or web page, whichever is less. Failure to remove defamatory statements as provided in this section shall create a presumption of malice intent. The bill was then withdrawn but its backer is saying he'll bring back something else having to do with online libel. It's hard to tell exactly what this bill would do, but it seems likely that it would violate the First Amendment and probably 47 U.S.C. § 230, the federal statute that immunizes web page operators from liability for material posted to their pages by others. (Jack Balkin agrees on the § 230 question.) But if Tennessee legislators want to do something about online libel and retractions, why not look at Tenn. Code Ann. § 29-24-103? (a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory. (b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages. (2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate. This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well? The retraction statute already might cover bloggers, if you read "periodical" to include blogs, as a California Court of Appeal decision does. But given that the matter is not completely clear, it would be good if Tennessee legislators — and legislators in other states that have similar laws — made it clear.