Introduced Version






SENATE BILL No. 81

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 5-14-1.5-2; IC 34-6-2 ; IC 34-15-3; IC 34-15-4; IC 34-15-6.

Synopsis: Correction or clarification of defamation. Adopts the Uniform Correction or Clarification of Defamation Act drafted by the National Conference of Commissioners on Uniform State Laws. Repeals defamation clarification statutes specifically applicable to newspaper publishers, radio broadcasters, and television broadcasters.

Effective: July 1, 2000.





Simpson




    November 18, 1999, read first time and referred to Committee on Judiciary.







Introduced

Second Regular Session 111th General Assembly (2000)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 1999 General Assembly.

SENATE BILL No. 81



    A BILL FOR AN ACT to amend the Indiana Code concerning civil procedure.

Be it enacted by the General Assembly of the State of Indiana:

     SECTION 1. IC  5-14-1.5-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 2. For the purposes of this chapter:
    (a) "Public agency" means the following:
        (1) Any board, commission, department, agency, authority, or other entity, by whatever name designated, exercising a portion of the executive, administrative, or legislative power of the state.
        (2) Any county, township, school corporation, city, town, political subdivision, or other entity, by whatever name designated, exercising in a limited geographical area the executive, administrative, or legislative power of the state or a delegated local governmental power.
        (3) Any entity which is subject to either:
            (A) budget review by either the state board of tax commissioners or the governing body of a county, city, town, township, or school corporation; or
            (B) audit by the state board of accounts.


        (4) Any building corporation of a political subdivision of the state of Indiana that issues bonds for the purpose of constructing public facilities.
        (5) Any advisory commission, committee, or body created by statute, ordinance, or executive order to advise the governing body of a public agency, except medical staffs or the committees of any such staff.
        (6) The Indiana gaming commission established by IC  4-33 , including any department, division, or office of the commission.
        (7) The Indiana horse racing commission established by IC  4-31 , including any department, division, or office of the commission.
    (b) "Governing body" means two (2) or more individuals who are:
        (1) a public agency that:
            (A) is a board, a commission, an authority, a council, a committee, a body, or other entity; and
            (B) takes official action on public business;
        (2) the board, commission, council, or other body of a public agency which takes official action upon public business; or
        (3) any committee appointed directly by the governing body or its presiding officer to which authority to take official action upon public business has been delegated. An agent or agents appointed by a school corporation to conduct collective bargaining on behalf of that school corporation does not constitute a governing body for purposes of this chapter.
    (c) "Meeting" means a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business. It does not include:
        (1) any social or chance gathering not intended to avoid this chapter;
        (2) any on-site inspection of any project or program;
        (3) traveling to and attending meetings of organizations devoted to betterment of government; or
        (4) a caucus.
    (d) "Official action" means to:
        (1) receive information;
        (2) deliberate;
        (3) make recommendations;
        (4) establish policy;
        (5) make decisions; or
        (6) take final action.
    (e) "Public business" means any function upon which the public agency is empowered or authorized to take official action.
    (f) "Executive session" means a meeting from which the public is excluded, except the governing body may admit those persons necessary to carry out its purpose.
    (g) "Final action" means a vote by the governing body on any motion, proposal, resolution, rule, regulation, ordinance, or order.
    (h) "Caucus" means a gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action.
    (i) "Deliberate" means a discussion which may reasonably be expected to result in official action (defined under subsection (d)(3), (d)(4), (d)(5), or (d)(6)).
    (j) "News media" means all newspapers qualified to receive legal advertisements under IC  5-3-1 , all news services (as defined in IC  34-6-2-87 before its repeal July 1, 2000), and all licensed commercial or public radio or television stations.
    (k) "Person" means an individual, a corporation, a limited liability company, a partnership, an unincorporated association, or a governmental entity.
    SECTION 2. IC 34-6-2-33.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 33.2. "Defamatory", for purposes of IC 34-15-6 , has the meaning set forth in IC 34-15-6-1.
    SECTION 3. IC 34-6-2-35.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 35.2. "Economic loss", for purposes of IC 34-15-6 , has the meaning set forth in IC 34-15-6-1.
    SECTION 4. IC 34-6-2-103 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]: Sec. 103. (a) "Person", for purposes of IC 34-14, has the meaning set forth in IC 34-14-1-13.
    (b) "Person", for purposes of IC 34-15-6 , has the meaning set forth in IC 34-15-6-1.
     (c) "Person", for purposes of IC 34-19-2 , has the meaning set forth in IC 35-41-1.
    (c) (d) "Person", for purposes of IC 34-24-4 , means:
        (1) an individual;
        (2) a governmental entity;
        (3) a corporation;
        (4) a firm;
        (5) a trust;
        (6) a partnership; or
        (7) an incorporated or unincorporated association that exists

under or is authorized by the laws of this state, another state, or a foreign country.
    (d) (e) "Person", for purposes of IC 34-26-2 , includes individuals at least eighteen (18) years of age and emancipated minors.
    (e) (f) "Person", for purposes of IC 34-26-4 , has the meaning set forth in IC 35-41-1-22.
    (f) (g) "Person", for purposes of IC 34-30-5 , means any of the following:
        (1) An individual.
        (2) A corporation.
        (3) A partnership.
        (4) An unincorporated association.
        (5) The state (as defined in IC 34-6-2-140 ).
        (6) A political subdivision (as defined in IC 34-6-2-110 ).
        (7) Any other entity recognized by law.
    (g) (h) "Person", for purposes of IC 34-30-6 , means an individual, a corporation, a limited liability company, a partnership, an unincorporated association, or a governmental entity that:
        (1) has qualifications or experience in:
            (A) storing, transporting, or handling a hazardous substance or compressed gas;
            (B) fighting fires;
            (C) emergency rescue; or
            (D) first aid care; or
        (2) is otherwise qualified to provide assistance appropriate to remedy or contribute to the remedy of the emergency.
    (h) (i) "Person", for purposes of IC 34-30-18 , includes:
        (1) an individual;
        (2) an incorporated or unincorporated organization or association;
        (3) the state of Indiana;
        (4) a political subdivision (as defined in IC 36-1-2-13 );
        (5) an agency of the state or a political subdivision; or
        (6) a group of such persons acting in concert.
    (i) (j) "Person", for purposes of sections 42, 43, 69, and 95 of this chapter, means an individual, an incorporated or unincorporated organization or association, or a group of such persons acting in concert.
    SECTION 5. IC 34-15-6 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2000]:
     Chapter 6. Uniform Correction or Clarification of Defamation Act


    Sec. 1. The following definitions apply throughout 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. 2. (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 that is published after June 30, 2000.
    (b) This chapter applies to all publications, including writings, broadcasts, oral communications, electronic transmissions, or other forms of transmitting information.
    Sec. 3. (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 ninety (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 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) of this chapter for responding to a request for correction or clarification.
    Sec. 4. (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 twenty-five (25) days after receipt of information disclosed under subsection (a) or forty-five (45) days after receipt of a request for correction or clarification, whichever is later.
    Sec. 5. 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. 6. (a) A correction or clarification is timely if it is published before or within forty-five (45) days after receipt of a request for correction or clarification, unless the period is extended under section 4(c) of this chapter.
    (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.
    Sec. 7. (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 upon, must be set forth in a notice served on the plaintiff within sixty (60) days after service of the summons and complaint or ten (10) days after the correction or clarification is made, whichever is later. A correction or clarification is considered to be timely and sufficient unless the plaintiff challenges its timeliness or sufficiency within twenty (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 sixty (60) days after service of the summons and complaint. The court shall rule on the motion at the earliest appropriate time before trial.
    Sec. 8. (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 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 3(b) of this chapter or failed to disclose information in accordance with section 4 of this chapter.
    (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).
    Sec. 9. 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) of this chapter does not constitute a correction or clarification made by the person to whom the statement is attributed.
    Sec. 10. (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 5 of this chapter. 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. 11. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
    Sec. 12. This chapter may be cited as the Uniform Correction or Clarification of Defamation Act.

     SECTION 6. THE FOLLOWING ARE REPEALED [EFFECTIVE JULY 1, 2000]: IC 34-6-2-2 ; IC 34-6-2-33 ; IC 34-6-2-87 ; IC 34-15-3 ; IC 34-15-4.
    SECTION 7. [EFFECTIVE JULY 1, 2000] If any provision of IC 34-15-6 , as added by this act, or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of IC 34-15-6 , as added by this act, that can be given effect without the invalid provision or application, and to this end the provisions of IC 34-15-6 , as added by this act, are severable.