The Volokh Conspiracy - Online Libel and Retractions in Tennessee:

From our post on February 5:

[I]f Tennessee legislators want to do something about online libel and retractions [that's better than an earlier bill that I had criticized -EV], 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?

Now, from HB420, introduced February 7, by Rep. Briley -- the same Representative who had proposed the earlier, much-criticized bill:

Tennessee Code Annotated, Section 29-24-103, is amended by deleting subsection (a) and substituting instead the following:

(a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, 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.

I'm a little puzzled by this. The point of the five-day warning requirement, I take it, is to give the publisher the opportunity to retract. But if only subsection (a) is changed to include "newspaper, periodical or posted on the Internet," and subsection (b) continues to mention only newspapers and periodicals, then it sounds like Internet retractions will be ineffectual: An Internet speaker will get the 5-day notice that may let him retract if a retraction is called for -- but then nothing in (b) would give any legal effect to this retraction. Just look at what the revised statute would look like (new material italicized, important portions boldfaced):

(a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, 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....

What's more, while before the amendment Section 29-24-103 might have been read as covering blogs implicitly, on the theory that they are periodicals, the amendment to subsection (a) may be read as suggesting that Internet postings are not periodicals (since it treats the categories "newspaper," "periodical," and "posted on the Internet" as separate), and that (b) therefore doesn't apply to Internet postings. On the other hand, I doubt that this was the drafters' intention, since the amendment may also be read otherwise: After all, some newspapers are a type of periodical (and maybe all are, depending on how you define "periodical"), even though they're listed separately, so perhaps courts will conclude that material posted on the Internet can still be a periodical.

I wonder, then, if there might have been some mixup here: Might Rep. Briley's office have meant to cover Internet postings, but inadvertently proposed modifying only subsection (a) and not subsection (b)? Or if that wasn't they meant, what did they mean? (Or am I misanalyzing the statute here?)

Thanks to Volunteer Voters, which takes a somewhat more optimistic view of the statute than I do.

	[Eugene Volokh, February 6, 2007 at 11:06pm] Trackbacks Online Libel and Retractions in Tennessee: From our post on February 5: [I]f Tennessee legislators want to do something about online libel and retractions [that's better than an earlier bill that I had criticized -EV], 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? Now, from HB420, introduced February 7, by Rep. Briley -- the same Representative who had proposed the earlier, much-criticized bill: Tennessee Code Annotated, Section 29-24-103, is amended by deleting subsection (a) and substituting instead the following: (a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, 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. I'm a little puzzled by this. The point of the five-day warning requirement, I take it, is to give the publisher the opportunity to retract. But if only subsection (a) is changed to include "newspaper, periodical or posted on the Internet," and subsection (b) continues to mention only newspapers and periodicals, then it sounds like Internet retractions will be ineffectual: An Internet speaker will get the 5-day notice that may let him retract if a retraction is called for -- but then nothing in (b) would give any legal effect to this retraction. Just look at what the revised statute would look like (new material italicized, important portions boldfaced): (a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, 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.... What's more, while before the amendment Section 29-24-103 might have been read as covering blogs implicitly, on the theory that they are periodicals, the amendment to subsection (a) may be read as suggesting that Internet postings are not periodicals (since it treats the categories "newspaper," "periodical," and "posted on the Internet" as separate), and that (b) therefore doesn't apply to Internet postings. On the other hand, I doubt that this was the drafters' intention, since the amendment may also be read otherwise: After all, some newspapers are a type of periodical (and maybe all are, depending on how you define "periodical"), even though they're listed separately, so perhaps courts will conclude that material posted on the Internet can still be a periodical. I wonder, then, if there might have been some mixup here: Might Rep. Briley's office have meant to cover Internet postings, but inadvertently proposed modifying only subsection (a) and not subsection (b)? Or if that wasn't they meant, what did they mean? (Or am I misanalyzing the statute here?) Thanks to Volunteer Voters, which takes a somewhat more optimistic view of the statute than I do.