78(R) HB 2395 - Introduced version


                                                                                

78R8665 T

By:  Corte                                                        H.B. No. 2395



A BILL TO BE ENTITLED

AN ACT

relating to the Uniform Correction or Clarification of Defamation 
Act.      
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.   Title 4, Civil Practice and Remedies Code, is 
amended by adding Chapter 98 to read as follows:

CHAPTER 98.  UNIFORM CORRECTION OR CLARIFICATION OF
DEFAMATION ACT
	Sec. 98.001.  DEFINITIONS. In this chapter:                             
		(1)  "Defamatory" means tending to harm reputation.                    
		(2)  "Economic loss" means special, pecuniary loss 
caused by a false and defamatory publication.
		(3)  "Person" means an individual, corporation, 
business trust, estate, trust, partnership, association, joint 
venture, or other legal or commercial entity.  The term does not 
include a government or governmental subdivision, agency, or 
instrumentality.
	Sec. 98.002.  SCOPE. (a)  This chapter applies to any claim 
for relief, however characterized, for damages arising out of harm 
to personal reputation caused by the false content of a 
publication.
	(b)  This chapter applies to all publications, including 
writings, broadcasts, oral communications, electronic 
transmissions, or other forms of transmitting information.
	Sec. 98.003.  REQUEST FOR CORRECTION OR CLARIFICATION. (a)  
A person may maintain an action for defamation only if:
		(1)  the person has made a timely and adequate request 
for correction or clarification from the defendant; or
		(2)  the defendant has made a correction or 
clarification.           
	(b)  A request for correction or clarification is timely if 
made within the period of limitation for commencement of an action 
for defamation.  However, a person who, within 90 days after 
knowledge of the publication, fails to make a good faith attempt to 
request a correction or clarification may recover only provable 
economic loss.
	(c)  A request for correction or clarification is adequate if 
it:     
		(1)  is made in writing and reasonably identifies the 
person making the request;
		(2)  specifies with particularity the statement 
alleged to be false and defamatory and, to the extent known, the 
time and place of publication;
		(3)  alleges the defamatory meaning of the statement;                  
		(4)  specifies the circumstances giving rise to any 
defamatory meaning of the statement that arises from other than the 
express language of the publication; and
		(5)  states that the alleged defamatory meaning of the 
statement is false.
	(d)  In the absence of a previous adequate request, service 
of citation stating a claim for relief for defamation and 
containing the information required in Subsection (c) constitutes 
an adequate request for correction or clarification.
	(e)  The period of limitation for commencement of a 
defamation action is tolled during the period allowed in Section 
98.006(a) for responding to a request for correction or 
clarification.
	Sec. 98.004.  DISCLOSURE OF EVIDENCE OF FALSITY. (a)  A 
person who has been requested to make a correction or clarification 
may ask the requestor to disclose reasonably available information 
material to the falsity of the allegedly defamatory statement.
	(b)  If a correction or clarification is not made, a person 
who unreasonably fails to disclose the information after a request 
to do so may recover only provable economic loss.
	(c)  A correction or clarification is timely if published 
within 25 days after receipt of information disclosed as provided 
by Subsection (a) or 45 days after receipt of a request for 
correction or clarification, whichever is later.
	Sec. 98.005.  EFFECT OF CORRECTION OR CLARIFICATION. If a 
timely and sufficient correction or clarification is made, a person 
may recover only provable economic loss, as mitigated by the 
correction or clarification.
	Sec. 98.006.  TIMELY AND SUFFICIENT CORRECTION OR 
CLARIFICATION. (a)  A correction or clarification is timely if it is 
published before, or within 45 days after, receipt of a request for 
correction or clarification, unless the period is extended under 
Section 98.004(c).
	(b)  A correction or clarification is sufficient if it:                 
		(1)  is published with a prominence and in a manner and 
medium reasonably likely to reach substantially the same audience 
as the publication complained of;
		(2)  refers to the statement being corrected or 
clarified and:       
			(A)  corrects the statement;                                          
			(B)  in the case of defamatory meaning arising 
from other than the express language of the publication, disclaims 
an intent to communicate that meaning or to assert its truth; or
			(C)  in the case of a statement attributed to 
another person, identifies the person and disclaims an intent to 
assert the truth of the statement; and
		(3)  is communicated to the person who has made a 
request for correction or clarification.
	(c)  A correction or clarification is published in a medium 
reasonably likely to reach substantially the same audience as the 
publication complained of if it is published in a later issue, 
edition, or broadcast of the original publication.
	(d)  If a later issue, edition, or broadcast of the original 
publication will not be published within the time limits 
established for a timely correction or clarification, a correction 
or clarification is published in a manner and medium reasonably 
likely to reach substantially the same audience as the publication 
complained of if:
		(1)  it is timely published in a reasonably prominent 
manner:        
			(A)  in another medium likely to reach an audience 
reasonably equivalent to the original publication; or
			(B)  if the parties cannot agree on another 
medium, in the newspaper with the largest general circulation in 
the region in which the original publication was distributed;
		(2)  reasonable steps are taken to correct any 
undistributed copies of the original publication; and
		(3)  it is published in the next practicable issue, 
edition, or broadcast, if any, of the original publication.
	(e)  A correction or clarification is timely and sufficient 
if the parties agree in writing that it is timely and sufficient.
	Sec. 98.007.  CHALLENGES TO CORRECTION OR CLARIFICATION OR 
TO REQUEST FOR CORRECTION OR CLARIFICATION. (a)  If a defendant in 
an action governed by this chapter intends to rely on a timely and 
sufficient correction or clarification, the defendant's intention 
to do so, and the correction or clarification relied on, must be set 
forth in a notice served on the plaintiff within 60 days after 
service of the citation or 10 days after the correction or 
clarification is made, whichever is later.  A correction or 
clarification is timely and sufficient unless the plaintiff 
challenges its timeliness or sufficiency within 20 days after the 
notice is served.
	(b)  If a defendant in an action governed by this chapter 
intends to challenge the adequacy or timeliness of a request for 
correction or clarification, the defendant must set forth the 
challenge in a motion to declare the request inadequate or untimely 
served within 60 days after service of the citation.  The court 
shall rule on the motion at the earliest appropriate time before 
trial.
	Sec. 98.008.  OFFER TO CORRECT OR CLARIFY. (a)  If a timely 
correction or clarification is no longer possible, the publisher of 
an alleged defamatory statement may offer, at any time before 
trial, to make a correction or clarification.  The offer must be 
made in writing to the person allegedly defamed by the publication 
and:
		(1)  contain the publisher's offer to:                                 
			(A)  publish, at the person's request, a 
sufficient correction or clarification; and
			(B)  pay the person's reasonable expenses of 
litigation, including attorney's fees, incurred before publication 
of the correction or clarification; and
		(2)  be accompanied by a copy of the proposed 
correction or clarification and the plan for its publication.
	(b)  If the person accepts in writing an offer to correct or 
clarify made under Subsection (a):
		(1)  the person is barred from commencing an action 
against the publisher based on the statement; or
		(2)  if an action has been commenced, the court shall 
dismiss the action against the defendant with prejudice after the 
defendant complies with the terms of the offer.
	(c)  A person who does not accept an offer made in 
conformance with Subsection (a) may recover in an action based on 
the statement only:
		(1)  damages for provable economic loss; and                           
		(2)  reasonable expenses of litigation, including 
attorney's fees, incurred before the offer, unless the person 
failed to make a good faith attempt to request a correction or 
clarification in accordance with Section 98.003(b) or failed to 
disclose information in accordance with Section 98.004.
	(d)  On request of either party, a court shall promptly 
determine the sufficiency of the offered correction or 
clarification.
	(e)  The court shall determine the amount of reasonable 
expenses of litigation, including attorney's fees, specified in 
Subsections (a)(1)(B) and (c)(2).
	Sec. 98.009.  SCOPE OF PROTECTION. A timely and sufficient 
correction or clarification made by a person responsible for a 
publication constitutes a correction or clarification made by all 
persons responsible for that publication other than a republisher. 
However, a correction or clarification that is sufficient only 
because of the operation of Section 98.006(b)(2)(C) does not 
constitute a correction or clarification made by the person to whom 
the statement is attributed.
	Sec. 98.010.  ADMISSIBILITY OF EVIDENCE OF CORRECTION OR 
CLARIFICATION. (a)  The fact of a request for correction or 
clarification under this chapter, the contents of the request, and 
its acceptance or refusal are not admissible in evidence at trial.
	(b)  The fact that a correction or clarification under this 
chapter was made and the contents of the correction or 
clarification are not admissible in evidence at trial except in 
mitigation of damages under Section 98.005.  If the fact that a 
correction or clarification was made or the contents of the 
correction or clarification are received in evidence, the fact of 
the request may also be received.
	(c)  The fact of an offer of correction or clarification, or 
the fact of its refusal, and the contents of the offer are not 
admissible in evidence at trial.
	Sec. 98.011.  UNIFORMITY OF APPLICATION AND CONSTRUCTION. 
This chapter shall be applied and construed to effect its general 
purpose to make uniform the law with respect to the subject of this 
chapter among states enacting it.
	Sec. 98.012.  SHORT TITLE. This chapter may be cited as the 
Uniform Correction or Clarification of Defamation Act.
	SECTION 2.  This Act takes effect September 1, 2003, and 
applies only to a cause of action that accrues on or after that 
date.  An action that accrued before the effective date of this Act 
is governed by the law applicable to the action immediately before 
the effective date of this Act, and that law is continued in effect 
for that purpose.