Room for Error Online: Revising Georgia’s Retraction Statute to Accommodate the Rise of Internet Media

• Citation: Vol. 28 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 28 j Issue 3 Spring 2012

3-28-2013

Room for Error Online: Revising Georgia's Retraction Statute to Accommodate the Rise of Internet Media

Lisa Boggs

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Recommended Citation

Boggs, Lisa (2011) "Room for Error Online: Revising Georgia's Retraction Statute to Accommodate the Rise of Internet Media," Georgia State University Law Review: Vol. 28: Iss. 3, Article 16. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss3/16

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ROOM FOR ERROR ONLINE: REVISING GEORGIA'S RETRACTION STATUTE TO ACCOMMODATE THE RISE OF INTERNET

MEDIA

Lisa Boggs*

Introduction

It started, as do many lawsuits, with a relationship gone sour: A Georgia man facing a DUI charge had fired his attorney, alleging a "half-hearted excuse for a defense" and requesting his $3,000 flat fee be refunded.¹ The attorney declined to do so.² Nearly three years later, the former client began a series of postings on his personal website—a self-labeled "Political Forum"—in which he accused the attorney of bribing judges on behalf of drug dealers.³ At the close of one posting, the former client predicted that the attorney "will never make one single move against me or this website."⁴

He was wrong, as it turned out. The attorney not only alleged libel, but prior to filing suit he also sent a letter demanding that the ex-client retract the offensive postings.⁵ The reason for the request seems clear at first: As in several other states,⁶ Georgia will bar punitive damages if the libel plaintiff fails to ask for a retraction.⁷

*J.D. Candidate, 2012 Georgia State University College of Law. The author wishes to thank Professors Katie Wood and Lynn Hogue for their assistance and guidance.

1. Milum v. Banks, 642 S.E.2d 892, 893-94 (Ga. Ct. App. 2007).

2. Id. at 894.

3. Id. At one point, the website referred to the attorney as a "Drug Dealer Bribery Mule." Id. The same posting concluded with the following: "Rafe, don't you wish you had given back my three thousand dollar retainer when I asked you too, [sic] because I found out you were helping them set me up?" Id.

4. Id.

5. Milum, 642 S.E.2d at 894.

6. See, e.g., Cal. Civ. Code § 48a (West 2007); Conn. Gen. Stat. Ann. § 52-237 (West 2005); Fla. Stat. Ann. § 770.02 (West 2005); Mass. Gen. Laws Ann. ch. 231, § 93 (West 2000); Minn. Stat. Ann. § 548.06 (West 2010). Cf. N.D. Cent. Code § 32-43-03 (2008) (requiring libel plaintiffs to submit correction requests to maintain a libel action and also limiting damages to "provable economic loss" if the request comes more than ninety days after publication).

7. Ga. Code Ann. § 51-5-11(b)(2), (c) (2000).

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Likewise, the defendant can avoid punitive damages if he makes the requested retraction.⁸

But should this sort of immunity—avoiding punitive damages via retraction—be available for this "Political Forum" and other websites?⁹ Georgia's current retraction statute was written decades before the Internet, and thus it refers only to "newspaper[s] or other publication[s]."¹⁰ The Georgia Supreme Court in Mathis v. Cannon seemingly answered this question in 2002 by interpreting "publication" as covering Internet postings.¹¹ Thus, with one decision, the court declared that all online content—down to the most informal blog and message board¹²—receives a protection traditionally applied to large-scale, institutionalized news-gathering, media-like newspapers.¹³

While the majority praises its opinion as an egalitarian move to protect both lone blogger and media corporations alike,¹⁴ the Mathis dissent raises two key criticisms. First, allowing any Internet user to

8. Id. § 51-5-11(b)(1)(B), (c) (stating that the defendant shall be liable for actual damages if "the defendant, in a regular issue of the newspaper or other publication in question, within seven days after receiving a written demand, or in the next regular issue of the newspaper or other publication following receipt of the demand if the next regular issue was not published within seven days after receiving the demand, corrected and retracted the allegedly libelous statement in as conspicuous and public a manner as that in which the alleged libelous statement was published").

9. As for the attorney and his ex-client, the retraction request opened the door for punitive damages, but the trial jury only awarded the attorney $50,000 in general damages. Milum, 642 S.E.2d at 895, 898. The trial court had determined the attorney was a limited public figure and thus was required to prove that the ex-client had acted with actual malice if punitive damages were to be awarded. Id. at 896, 897. To the jurors, that burden was not met. Id. at 897. The Georgia Court of Appeals affirmed this ruling. Id.

at 898.

10. Ga. Code Ann. § 51-5-11(b)(2) (2000). In 1939, the retraction statute applied to a "newspaper, magazine or periodical." 1939 Ga. Laws 343, 344. By 1960, the statute had been reworded to "newspaper or other publication." 1960 Ga. Laws 198, 199.

11. Mathis v. Cannon, 573 S.E.2d 376, 385 (Ga. 2002) ("[W]e construe the word 'publication' in . . . the retraction statute as meaning a communication made to any person other than the party libeled. Under this interpretation, the retraction statute applies to the words that Mathis wrote in his messages posted on [an online] bulletin board . . . .").

12. See, e.g., Atlanta Humane Soc'y v. Mills, 618 S.E.2d 18, 21 (Ga. Ct. App. 2005) (regarding alleged libelous statements made on an Internet message board about the Atlanta Humane Society's policies with regard to euthanasia, adoption, and cruelty investigations, including a reference to the Humane Society's director as "Mr. Kill").

13. See 1939 Ga. Laws 343, 344 (restating the initial retraction statute, which applied to a "newspaper, magazine or periodical").

14. Mathis, 573 S.E.2d at 385 (holding that interpreting "publication" to mean Internet content "supports free speech by extending the same protection to the private individual who speaks on matters of public concern as newspapers and other members of the press now enjoy").

2012] GEORGIA'S RETRACTION STATUTE 925

avoid punitive damages by retracting the libelous material "asks no self-censorship" of the users.¹⁵ Unlike newspapers or TV stations, which are held accountable by advertisers, consumers, and threats of litigation, individuals with their own Web content have the freedom to post false, defamatory statements, always knowing they can avoid punitive damages by retracting.¹⁶ Second, if the state legislature had intended for the retraction statute to cover Internet content, it could have revised the statute itself to specifically reference online materials.¹⁷ Instead, the court gave new meaning to the statute, and reached a result that consequently conflicts with several other states' judicial interpretations of pre-Internet libel laws.¹⁸

This Note will address both of these criticisms by proposing a revision of Georgia's retraction law. Part I examines retraction's overall role in libel litigation and takes a closer look at Georgia's statute as well as the Mathis decision.¹⁹ Part II compares Mathis to the approaches other states have taken regarding electronic-media retractions.²⁰ In particular, Part II examines California's recent case law that only requires retractions when the publisher is involved in the rapid dissemination of news, as opposed to the casual Web poster.²¹ Finally, Part III proposes a revision to Georgia's retraction statute that will both avoid blanket punitive damage immunity for online content, while also returning the statute's focus to protecting news-gathering sources.²²

15. Id. at 389 (Hunstein, J., dissenting).

16. See Alice Horton, Note, Beyond Control? The Rise and Fall of Defamation Regulation on the Internet, 43 Val. U. L. Rev. 1265, 1267 (2009) ("The Internet no longer requires technical computing language to navigate effectively; instead, the Internet is provided by the mere click of a mouse, and widespread broadband Internet access allows virtually anyone to become a publisher.").

17. Mathis, 573 S.E.2d at 388 (Hunstein, J., dissenting).

18. See, e.g., Zelinka v. Americare Healthscan, Inc., 763 So. 2d 1173, 1175 (Fla. Dist. Ct. App. 2000) (holding that notice requirements in the libel statute are not applicable to a private individual who posted on an Internet message board); It's In The Cards, Inc. v. Fuschetto, 535 N.W.2d 11, 14 (Wis. Ct. App. 1995) (holding that a retraction statute which references newspapers, magazines, and periodicals does not apply to an Internet message board).

19. See discussion infra Part I.

20. See discussion infra Part II.

21 . See discussion infra Part II.A.3. 22. See discussion infra Part III.

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I. Retraction And Its Role In Libel Law

A. Retraction's Emergence In Libel Cases

1. Evolving Burden of Proof for Libel

At common law, defamation²³ involves a communication that is a false statement of fact "of and concerning" another party.²⁴ The communication must be injurious to reputation,²⁵ and it must be "published," or communicated to a third party.²⁶ Traditionally, defamation came in two forms: (1) libel, encompassing defamation that was written or could be read; and (2) slander, which covers spoken defamation.²⁷ However, as mass media has evolved, libel now typically covers not just the written word, but also the spoken word— heard via radio, television, and films.²⁸

Libel itself has evolved from common law into a matter of state law, with legislatures crafting their own definition of...