Uniform Corrections p.

By: Debra Gersh

Defamation act final draft focuses on narrow scope of clarification; newspaper associations still wary
THE LENGTHY AND complex process of formulating a solution to the lengthy and complex process of a defamation action is drawing to a close, albeit in an abbreviated form.
For the past five years, a drafting committee of the National Conference of Commissioners on Uniform State Laws has been working on the Uniform Defamation Act (UDA), a proposal to unify defamation laws around the nation and provide an alternative to litigation, if possible (E&P, Oct. 24, 1992, P. 18).
However, when the committee presents its final draft to the entire conference this summer, it will be showing a shortened version, renamed the Uniform Clarification or Correction of Defamation Act (UCCDA).
The edited act essentially takes the correction and clarification provisions of the UDA, the retraction statute with modifications, and additional provisions that allow either party to bring resolution without trial, explained Randall P. Bezanson, dean of the Washington & Lee University School of Law and the drafting committee reporter.
What the UCCDA does not include is language from the earlier draft codifying the definition of defamation, nor does it address the issue of damages, Bezanson added.
The drafting committee earlier had decided to break the act into separate sections, allowing for passage of portions of the proposal, if necessary.
After a meeting of the committee last spring ? the last before the act is slated to be presented to the entire NCCUSL on Aug. 1 ? members decided that the abbreviated act would stand a better chance of adoption.
The act is slated to be read, section by section, to the full conference of commissioners, who then will debate its provisions and possibly suggest changes. Once a final draft has been prepared, each state delegation will vote for or against passage. The act needs 50% of the state votes to advance.
If the act passes the full commission, Bezanson explained, it is then forwarded to the American Bar Association board of governors.
Presuming it has the weight of support from both groups, the commission representatives from each state develop a strategy for having the act introduced and enacted in their state legislatures, Bezanson said.
"This is not an academic exercise," Bezanson noted, adding that the items carried over from the UDA are those "most likely to achieve enactment in the state legislatures."
The UCCDA still focuses on the original goal of the committee, which was, basically, to "escape litigation and gain vindication," Bezanson added.
The UDA met with vitriolic opposition from the newspaper industry, as evidenced during a public hearing on the proposal last October.
Bezanson said the media concerns were important to the committee, especially when considering obtaining support for the act in the state legislatures.
He added that some media concerns, however, focused on issues that were dropped, such as defining defamation and the damage provisions.
Another factor in the change was the issue of punitive damages itself. The committee decided to avoid this controversial topic, which is under debate in the legal community over how and whether to limit punitive damages.
Despite the changes, newspaper industry representatives still are not pleased that the proposal exists at all.
"The value of uniformity would have to be tremendous to outweigh the political liabilities in engaging in this debate in most state legislatures," commented Tonda Rush, National Newspaper Association president and CEO.
"While it may be that for a national publisher there is some value in uniformity, from the viewpoint of the community publisher it is of little value," she added.
Another concern of the community newspapers is the fact that introduction of uniform legislation would be controlled by the commission.
"The state press associations could wake up in January and find it on the docket whether they're prepared for it or not," Rush explained. "If the uniform commissioners could say it's time to debate this, it's too bad if it's not 7/23/2015 for the community papers."
Further, she explained, some states already have "excellent" legislation regarding retractions, while others have avoided the question entirely. Uniform legislation "takes everything down to its lowest common denominator."
"The question is, is there a need for this at all? From the community newspapers' standpoint, there is no need. We don't need to have a national conference to do tort reform under the guise of uniformity."
The Newspaper Association of America said it would oppose the uniform act.
John F. Sturn, NAA senior vice president for government, legal and public policy, stated, "While we recognize that there are positive aspects to retraction statutes, we are concerned that the process in which this statute will be considered opens the door for many unknown and high-risk amendments."
He said NAA was not convinced that the proposal "provides an acceptable balance of interest for a uniform retraction statute."