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1/5/94

The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Correction or Clarification of Defamation Act was as follows:

HARVEY S. PERLMAN, University of Nebraska, College of Law, Lincoln, NE 68583,

Chair

JACK DAVIES, Court of Appeals, Judicial Building, 25 Constitution Avenue, St. Paul,

MN 55155

LEWIS C. GREEN, Suite 1830, 314 North Broadway, St. Louis, MO 63102

JOHN F. HAYES, Suite 260, 335 North Washington, Hutchinson, KS 67504

KATHRYN L. HOVE, 2371 Highway 1, N.E., Solon, IA 52333

ELMER R. OETTINGER, 58 Oakwood Drive, Chapel Hill, NC 27514

MATTHEW S. RAE, JR., 34th Floor, 777 South Figueroa Street, Los Angeles,

CA 90017

FREDERICK P. STAMP, JR., U.S. District Court, P.O. Box 791, Wheeling, WV 26003

RANDALL P. BEZANSON, Washington and Lee University, School of Law, Lexington,

VA 24450, Reporter

DWIGHT A. HAMILTON, Suite 600, 1600 Broadway, Denver, CO 80202, President

DAVID PEEPLES, Court of Appeals, Bexar County Justice Center, Suite 3200,

300 Dolorosa, San Antonio, TX 78205, Chair, Division F

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,

Norman, OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,

Executive Director Emeritus

LEWIS V. VAFIADES, P.O. Box 919, 23 Water Street, Bangor, ME 04402, Chair

W. MICHAEL DUNN, P.O. Box 3701, 1000 Elm Street, Manchester, NH 03105

RAYMOND P. PEPE, 11th Floor, 240 North Third Street, Harrisburg, PA 17101

KEVIN T. BAINE, American Bar Association, Section of Litigation

ROBERT J. HAWLEY, American Bar Association/American Newspaper Publishers

Association Task Force

LEE LEVINE, American Bar Association, Section of Tort and Insurance Practice

TONY E. MAURO, American Bar Association, National Conference of Lawyers and

Representatives of the Media

RONALD L. PLESSER, American Bar Association, Section of Individual Rights and

Responsibilities

RODNEY A. SMOLLA, American Bar Association

DANIEL M. WAGGONER, American Bar Association, Forum on Communications Law

JOHN J. WALSH, New York, New York

Since the United States Supreme Court recognized the First Amendment limitations on the common law tort of defamation, courts have struggled to achieve the proper balance between the constitutionally protected guarantees of free expression and the need to protect citizens from reputational harm. Defamation actions were always complex and expensive and the overlay of first amendment issues has made them more so. On the other hand, unlike personal injuries, harm to reputation can often be cured by other than money damages. The correction or clarification of a published defamation may restore the person's reputation more quickly and more thoroughly than a victorious conclusion to a lawsuit. The salutary effect of a correction or clarification is enhanced if it is published reasonably soon after the defamation, but because of the complexity of defamation litigation, any ultimate vindication in the courts comes long after the initial injury.

To address these concerns, many states have adopted retraction statutes. These statutes often require as a condition to litigation that the plaintiff request the publisher to retract the alleged defamation. These statutes have been largely ineffective because they most often apply to a narrow range of cases and they do not create sufficient incentives on both parties, the plaintiff and the defendant, to come to an agreement regarding retraction. Even the term retraction carries with it an implication of admission of wrongdoing, although in many instances the reputational harm arises from an interpretation not intended by the publisher or the publication of reasonably believable information that subsequently turns out to be false.

The Uniform Correction or Clarification of Defamation Act seeks to remedy these flaws in current law by providing strong incentives for individuals promptly to correct or clarify an alleged defamation as an alternative to costly litigation. The Act applies to all defamations, whether public or private, media or non-media, thus establishing a simplified structure for the resolution of all disputes. Moreover, the Act will provide a uniform set of requirements that will assure the national media a consistent and meaningful opportunity to correct or clarify.

The options created by the Act provide an opportunity for the plaintiff who believes he or she is defamed to secure quick and complete vindication of his or her reputation. The Act provides publishers with a quick and cost-effective means of correcting or clarifying alleged mistakes and avoiding costly litigation. In this way, both reputational interests and rights of free expression are advanced.

SECTION 1. DEFINITIONS. In this [Act]:

(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.

The scope of the Act is defined in a number of its provisions beginning with the definitions of "defamatory" and "person," and including as well Section 2, which addresses the types of claims to which the Act's requirements apply. In general, the correction or clarification procedures of the Act apply to all defamation and defamation-like claims involving reputational harm to persons arising out of published falsity. The Act applies to all forms of publication, including written and oral publications, and to all publishers, including national and local media, and private individuals.

The Act applies to individual and "corporate" defamation claims but not to claims such as product disparagement, which do not rest on harm to a person's reputation or other parasitic emotional harm, nor to claims such as unfair competition, false advertising, and the like where the relief sought is not personal or reputational in character.

The Act is intended to apply to common law defamation (libel and slander) torts in all states. The Act makes no change in the elements of the tort. The defined term, "defamatory," is given its traditional and universal common law meaning, which is a statement tending to harm reputation, but the additional requirements of proof of actual harm to reputation, falsity, negligence or malice, and the like, are left undisturbed as they exist in the law of each enacting jurisdiction.

The term "person" does not extend to governments or governmental subdivisions, agencies, or instrumentalities, thus making the Act consistent with the universally recognized exclusion of such bodies as defamation plaintiffs, both as a matter of common law and constitutional mandate.

The definition of "person" does not specify whether, at the time an action is commenced, the individual is alive or was alive at the time of the defamation. This is not intended to imply any change in a jurisdiction's underlying law about defamation of deceased persons or survival of defamation claims. Dead individuals cannot be defamed and, as a general (though not universal) rule, defamation claims do not survive the death of the defamed individual.

By the term "economic loss" the Act is intended to embrace those forms of provable loss described, variously, as pecuniary, special, or out-of-pocket, and to exclude all other forms of damage, including presumed, general, reputational, and punitive damages.

SECTION 2. SCOPE.

(a) This [Act] 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 that is published on or after the effective date of this [Act].

(b) This [Act] applies to all publications, including writings, broadcasts, oral communications, electronic transmissions, or other forms of transmitting information.

Section 2 outlines the substantive reach of the Act; that is, the types of actions, however styled or pleaded, to which the correction or clarification procedures apply. The Act applies to defamation-like claims "arising out of harm to personal reputation caused by the false content of a publication."

Section 2 does not displace, preempt, or modify any underlying causes of action recognized in the various jurisdictions. Instead, it simply identifies the actions to which the correction or clarification requirements apply.

Section 2 is intended to preclude plaintiffs escaping the Act by the device of artful or creative pleading or characterization of remedies and damages. If the action is for damages arising out of harm to personal (including corporate) reputation caused by publication of a false statement - i.e., by the consequences of the statement's falsity - the Act applies, no matter how the action is named or the damages are described. The Act does not apply to actions in which falsity may be at issue but in which the damages sought are neither for reputational injury nor for emotional distress linked to the reputational consequences of a false publication. For example, the Act would not generally apply to product disparagement or unfair trade torts because such claims do not generally seek damages for injury to personal or corporate reputation. On the other hand, claims such as those for "false light" invasion of privacy, or for intentional or negligent infliction of emotional distress, might or might not be subject to the Act. The question in each case is not the title of the action, but its true substance. If the relief sought is linked to reputational harm, the Act will apply.

Thus, for example, a false light privacy claim will be subject to the Act if any aspect of the claim rests on reputational harm to the subject of the publication, even if the damages claimed may also be for invasion of privacy. Similarly, an infliction of emotional distress claim will be subject to the Act if the claimed emotional distress arises out of the publication of a false statement that has caused reputational harm and the reputational consequences of the publication are linked to the emotional distress suffered. Only where the damages can reasonably be construed as separate and distinct from any damage to reputational harm arising out of a false publication, would an emotional distress claim be considered not subject to the Act.

For example, if the plaintiff is rejected by friends and neighbors because they believe a false defamatory statement about the plaintiff, a claim for the emotional distress suffered because of this rejection would be covered by this Act, even if the plaintiff specifically disclaimed interest in harm to reputation generally. On the other hand, where a defendant engages in a systematic harassment of the plaintiff by parading in front of the plaintiff's house, constantly contacting plaintiff's neighbors, and phoning plaintiff in the middle of the night, a claim for emotional distress for outrageous conduct outside the scope of the Act could be framed even though one of the mechanisms for harassment was the use of defamatory statements. As a general approach, the issue should be whether a proper correction or clarification can reasonably cure the underlying cause of the emotional distress.

SECTION 3. 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 which 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 a [summons and complaint] 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 6(a) for responding to a request for correction or clarification.

Section 3 provides that an action may not be maintained unless a timely and adequate request for correction or clarification has first been made. However, unlike many existing retraction statutes, the Act also attempts to avoid technical requirements that can often serve as traps for unwary plaintiffs. Thus under Sections 3(b) and 3(d) a complaint filed within the applicable period of limitations and containing the information set forth in Section 3(c) will always serve as a timely and adequate request. This avoids the preclusive effect of an inadequate earlier request or a failure to seek a correction or clarification for any other reason.

Section 3(a) also provides that a plaintiff need not go through the formality of requesting a correction or clarification where the publisher has already voluntarily made a correction or clarification. The Act is intended to encourage early corrections or clarifications and a voluntarily published correction or clarification, if sufficient under Section 6, would qualify for all the benefits of the Act.

Section 3(b) provides a strong incentive for an early request and a significant penalty for failure to make one. Unless a good faith attempt to obtain a correction or clarification is made within 90 days of knowledge of the publication, the plaintiff will be limited in any defamation action to recovery of provable economic loss. Three aspects of Section 3(b) should be noted. First, the standard is "good faith attempt," and therefore the requesting party may not be required to satisfy all of the specific requirements contained in Section 3(c) within the 90-day period. An attempt to obtain a correction or clarification which gives the publisher reasonable notice should be sufficient. Second, the 90-day period runs from knowledge of the publication by the requesting party, not from the date of publication. Third, the limitation of damages also forecloses recovery of fees and expenses in a subsequent action for a plaintiff who has declined an offer under Section 8. See Section 8(c)(2).

The requirement of "good faith" in Section 3(b) also anticipates the rare situation, particularly in the context of media publications, in which the identity of the publisher, or all of the publishers, of an alleged defamation may not be known to a potential plaintiff. In such cases it is enough that good faith efforts have been made to ascertain the publishers' identity. If such efforts fail within the 90-day period and the identity of a publisher is not discovered until a later date (perhaps not until an action is commenced against another publisher), the 90-day period should not begin to run against the harmed person until that later date.

The requirement in Section 3(c)(1) that the potential plaintiff make a request in writing is not intended to foreclose the request being made for the person by an agent or attorney acting on his or her behalf.

Subsection (d) provides that a complaint will always serve as a timely request for correction or clarification if it contains the information required in subsection (c). The relevant procedures and time limits regarding the filing or amending of complaints are subject to local practice in each jurisdiction, but should be applied so as to effectuate the Act's purpose of resolving or limiting defamation disputes prior to litigation. For example, absent a showing of prejudice by the defendant, a plaintiff should be permitted to amend a complaint that fails to contain the information required by subsection (c). Similarly, extensions of time should be available to defendant publishers to consider a correction or clarification under the Act - a process that might consume more than 45 days if a request for information is made under Section 4 - before filing a responsive pleading or engaging in discovery, filing motions to dismiss, and the like.

Under Section 6 a defendant has 45 days to respond to a request for a correction or clarification. If the plaintiff makes the request within 45 days of the running of the statute of limitations the plaintiff might be required to file a complaint before the defendant had responded to the request. Subsection (e) tolls the statute to avoid this result.

SECTION 4. DISCLOSURE OF EVIDENCE OF FALSITY.

(a) A person who has been requested to make a correction or clarification may ask the requester 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 pursuant to subsection (a) or 45 days after receipt of a request for correction or clarification, whichever is later.

The person challenging a publication's truth will often be in possession of the information upon which its falsity can be judged. A publisher is therefore entitled to request such information in order to be in a position to evaluate the appropriateness of making a correction or clarification. In cases where the defendant does not make a correction or clarification, it is conclusively presumed that the plaintiff's unreasonable failure to disclose available information contributed to that decision. Accordingly, failure to provide the information, if reasonably available to the person requesting correction or clarification, and if material to proof of the challenged statement's falsity, limits damages recoverable in a subsequent defamation action to provable economic loss. The limitation to economic loss applies even if the publisher subsequently makes an offer to correct or clarify under Section 8 and the plaintiff refuses the offer. See Section 8(c)(2).

The requirement of materiality of the information to proof of falsity is intended to avoid turning disclosure under this section into a general discovery request seeking information about related activities of the requester which, while possibly relevant to trial of an action, are not directly material to the specific issue of falsity of a challenged statement.

SECTION 5. 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.

Section 5 is designed to encourage a publisher to grant a request for correction or clarification by providing that a requesting party may seek only damages for provable economic loss in the event of the timely publication of a sufficient correction or clarification. To be "timely" and "sufficient," the correction or clarification must meet the requirements of Section 6.

In limiting recovery of damages to provable economic loss as mitigated by the correction or clarification, the Act anticipates that any loss caused by the publication can be significantly reduced by publication of the correction or clarification. The burden of proving mitigation of economic loss, however, rests with the publisher.

SECTION 6. 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 4(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:

(i) corrects the statement;

(ii) 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

(iii) 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:

(i) in another medium likely to reach an audience reasonably equivalent to the original publication; or

(ii) 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 undistributed copies of the original publication, if any; 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.

This section sets out the requirements for a timely and sufficient correction or clarification. Subject to possible extension under Section 4(c), a "timely" correction or clarification must be published before or within 45 days of a request for correction or clarification.

The characteristics of a "sufficient" correction or clarification will vary depending upon the frequency and nature of the original publication and upon the timing and nature of the correcting or clarifying publication. The general focus of "sufficiency" under Section 6 is to seek to assure that the correcting or clarifying publication is "reasonably likely to reach substantially the same audience" as the challenged publication. The Act thus uses a functional standard aimed at effective vindication of reputation rather than one focusing mechanistically on particular location, identity of medium, specific size of audience, or the like. In attempting to effectuate the goal of reaching substantially the same audience as the challenged publication, the Act requires that the correction or clarification also be judged in terms of its prominence and the manner and medium of its publication. These criteria require that a judgment be made in each particular case with respect to the sufficiency of the particular publication.

Newspapers and other frequent publications have been the principal subjects of correction or clarification statutes throughout the country. At times corrections or clarifications have been required to be placed in similar if not identical locations to those in which the original story occurred, although even this rule has been dependent upon a number of factors, including the nature and scope of the original story as well as the newspaper's practices concerning reserved space for corrections. Under the Act such alternatives, as well as others presented in different types of media, must be judged in each case in terms of the requirement that the correction or clarification, in its location and prominence, should be reasonably likely to reach substantially the same audience as the original publication. Thus, in the case of an alleged newspaper defamation occurring in a smaller story appearing on an inside page, use of a regularly published corrections column at a fixed location, e.g., at the front or back of a news section or opposite an editorial page, may often suffice. Use of such a regularly placed column may or may not suffice for a publication appearing on the front page or in a specialized section of the paper.

In the case of an alleged radio or television broadcast or cablecast defamation, publication of a correction or clarification in a subsequent broadcast or cablecast of the same program (e.g., during a succeeding daily news program, or weekly newsmagazine program, in the same time period) would ordinarily suffice. Where the original broadcast or cablecast had been on a non-recurring program, however, publication of the correction or clarification on the same station or network or cable system during the same time of day would likely constitute a reasonable alternative in most instances.

In other contexts Section 6 may yield still other results. For example, correction or clarification of a defamatory employee reference or evaluation may require no more than contacting those persons or firms to whom the defamatory statement was communicated. If the statement had made its way into permanent files or had reached broader audiences, however, reasonable efforts to have the material removed from such files or to communicate the correction or clarification to identifiable members of the broader audience might be required. In the case of an oral defamation to friends or colleagues - a classic slander - a letter to those persons correcting or clarifying the defamation might suffice, on the assumption that word of the correction or clarification would spread as rapidly in the channels of gossip as did the original defamation.

For a book currently being sold, where a subsequent printing or edition will not be timely published, reasonable efforts to correct or clarify are set forth in subsection (d) and involve the following measures: timely publication in an alternative medium; appropriate corrections in any future editions; and reasonable steps to correct undistributed copies (by "undistributed" is meant books not yet shipped by the publisher to its customers). Suitable alternative mediums and reasonable steps to correct undistributed copies should be left, in the first instance, to the parties, and, if necessary, to the courts to evolve over time. Where the parties cannot agree on an alternative medium and the original distribution was national in scope, use of a publication likely to reach a substantially equivalent audience should ordinarily suffice.

The requirement of making reasonable efforts to reach substantially the same audience should be equitably construed so as to achieve the overriding purpose of the Act to give incentives for the publication of reasonably effective corrections or clarifications. To this end, the section is not intended to guarantee that in all cases a correction or clarification will reach the very same audience, nor does it require that a publisher achieve the impossible in attempting to reach a substantially equivalent audience. It is understood that once published, the person allegedly defamed can take additional steps to assure that the correction is communicated to particular individuals. The guidepost in all cases is reasonableness.

Subsection (b)(2) states the general rule that a "sufficient" correction or clarification must correct the original communication. An equivocal correction or clarification will not satisfy this requirement.

Where the alleged defamation was the result of a meaning arising from other than the express language of the publication or a statement attributed in the publication to another person, a sufficient correction or clarification need only contain a statement that the party making the communication did not intend the non-express meaning and disclaims it, or that in publishing the attributed statement of another person the publisher disclaims any intent to attest to the truth of the facts contained therein. This will allow the publisher to disavow the alleged meaning and yet stand behind the "facts" of the story.

Subsection (b)(2)(iii) provides a mechanism for a defendant who repeats a defamation from another source to "correct" or "clarify" by indicating that the defendant did not intend to assert the truth of the statement but merely reported what another had said. This form of "correction" does not, however, vindicate the plaintiff's reputation because it does not necessarily indicate that the statement is false, only that the particular defendant does not assert that it is true. A defendant relieved of liability for all but provable economic loss by such a correction should be required to identify the person asserting the truth of the statement even if the original publication did not do so. This provides the plaintiff the opportunity to seek vindication from the source. Nothing in this section, however, requires the news media or others to disclose the identity of confidential sources. If there is a confidential source, the media defendant would have three alternative courses of action: (1) limit its liability by issuing a correction under this section and identifying its source, (2) issue a correction under subsection (b)(2)(i) or (ii) without identifying the source but fully vindicating the plaintiff's reputation, or (3) defend the defamation action.

SECTION 7. CHALLENGES TO CORRECTION OR CLARIFICATION OR TO REQUEST FOR CORRECTION OR CLARIFICATION.

(a) If a defendant in an action governed by this [Act] intends to rely on a timely and sufficient correction or clarification, the defendant's intention to do so, and the correction or clarification relied upon, must be set forth in a notice served on the plaintiff within 60 days after service of the [summons and complaint] or 10 days after the correction or clarification is made, whichever is later. A correction or clarification is deemed to be 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 [Act] 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 [summons and complaint]. The court shall rule on the motion at the earliest appropriate time before trial.

The 20-day period for a plaintiff to challenge the timeliness or sufficiency of a correction or clarification is placed in brackets in order to accommodate variations in local practice with respect to responses to motions. It is important that the time period in this section be short and certain, as the purpose of subsection (a) is to identify and resolve disputed issues related to the correction or clarification promptly and before the litigation process has proceeded to other issues, such as motions to dismiss or extensive discovery related to privileges. Yet it was recognized that many jurisdictions have pre-existing rules pertaining to the form and timing of responses to motions. As long as those rules provide comparably short time limits, an enacting jurisdiction may wish to replace the bracketed language with a reference to such generally applicable requirements.

SECTION 8. 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:

(i) publish, at the person's request, a sufficient correction or clarification; and

(ii) 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 pursuant to 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 3(b) or failed to disclose information in accordance with Section 4.

(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)(ii) and (c)(2).

The purpose of Section 8 is to promote settlement of disputes and to create incentives to limit costly litigation even after the initial period for correction or clarification has passed. The section thus permits a publisher to make an offer to correct or clarify at any time prior to trial and, if the offer is not accepted, to limit a plaintiff to recovery of damages for provable economic loss and reasonable expenses of litigation, including attorney's fees. If the offer is accepted, the plaintiff, barring any other terms voluntarily negotiated, receives the reasonable expenses of litigation, including attorney's fees to the date of publication of the correction or clarification.

The section does not prevent any other voluntarily negotiated settlement, nor restrict the terms thereof. It is simply one settlement alternative that the statute permits the publisher to tender. It is the plaintiff's option to accept or reject the offer, although consequences ensue from rejection, for in the subsequent trial the plaintiff's recovery is limited and is subject to proof of all the common law and constitutional elements of the tort and its privileges (including actual malice where applicable).

Like other proposed settlements, the terms of the offer, as well as its acceptance or rejection, can and ordinarily should remain confidential. The Act does not foreclose the use of protective orders or the enforcement of confidentiality agreements, which are used under current law. The need for confidentiality is obvious, as a plaintiff who declines an offer and chooses either to commence or to continue the litigation, but who can also publish the terms of the offer (including the correction or clarification), would obviously be receiving more advantage than the Act anticipates.

SECTION 9. 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 6(b)(2)(iii) does not constitute a correction or clarification made by the person to whom the statement is attributed.

The purpose of this section is to make a correction or clarification by one party (e.g., a newspaper publisher, or an author) effective as to all parties to a publication with respect to the limitation on damages provided in the Act. It is not intended, however, that this protection be afforded to any republishers of the defamation (as that term is defined in applicable state law), nor to statements attributed to another person covered by Section 6(b)(2)(iii). A correction under that section represents only disavowal by the publisher (and other persons responsible for the publication apart from the quoted source) of the statement as its own, and leaves the quoted or attributed statement uncorrected. To this extent, a disavowal by the publisher will not provide sufficient vindication to the requester or plaintiff in such cases. The same is true, of course, for republication of a statement.

SECTION 10. ADMISSIBILITY OF EVIDENCE OF CORRECTION OR CLARIFICATION.

(a) The fact of a request for correction or clarification under this [Act], 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 [Act] was made and the contents of the correction or clarification are not admissible in evidence at trial except in mitigation of damages pursuant to Section 5. 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.

SECTION 11. UNIFORMITY OF APPLICATION AND CONSTRUCTION. This [Act] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this [Act] among States enacting it.

SECTION 12. SHORT TITLE. This [Act] may be cited as the Uniform Correction or Clarification of Defamation Act.

SECTION 13. SEVERABILITY. If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

SECTION 14. EFFECTIVE DATE. This [Act] takes effect ...........................  .

By applying only to statements published on or after the Act's effective date, Section 14 is made applicable to republications made after that date, as republications are generally, if not universally, treated as new publications. If the substantive law of a jurisdiction provides otherwise, that law will control.