Washington state is uniquely progressive when it comes to defamation law, and has adopted a number of interesting statutes, some of which make litigation more sensible, and some of which make it more frustrating. In 1989, for example, Washington became the first state anywhere in the nation to enact anti-SLAPP legislation, which we have written about before. Washington has also adopted cutting-edge anti-doxxing legislation, which we plan to cover in our next post.
For today’s post, however, we’re taking a look at Washington’s Uniform Correction or Clarification of Defamation Act, or the UCCDA. RCW 7.96.010 et seq. Adopted by the State of Washington in 2013, the UCCDA requires defamation plaintiffs to give defendants an opportunity to publish a retraction of a defamatory statement before bringing a lawsuit. If the retraction meets the requirements of the statute, a lawsuit generally cannot be brought.
This requirement is intended to eliminate litigation before it begins, which is always sensible in our opinion, provided that harm to reputation can be corrected by more expedient and less expensive means for our clients. The opening section of the law makes the Washington state legislature’s intent perfectly clear:
Since the United States supreme court recognized the First Amendment limitations on the common law tort of defamation and defamation-like torts, courts have struggled to achieve a balance between constitutionally protected guarantees of free expression and the need to protect citizens from reputational harm. Unlike personal injuries, harm to reputation can often be cured by means other than money damages. The correction or clarification of a published statement may restore a person’s reputation more quickly and more thoroughly than a victorious lawsuit. The salutary effect of a correction or clarification is enhanced if it is published reasonably soon after a statement is made. RCW 7.96.010.
The UCCDA was first proposed in 1993. To date, only three states have adopted it in any form—North Dakota, Texas, and Washington. Washington’s version contains several key elements.
First, a person who alleges that he or she was defamed must make a request for correction within the time period provided by the applicable statute of limitations (which is two years for defamation in Washington). The law specifies a number of requirements that all such requests for correction must meet. RCW 7.96.040.
Second, the purported victim must, upon request, provide the publisher with evidence that the defamatory statement was false. RCW 7.96.050.
Third, the published retraction must meet a host of requirements, the main one being that the retraction must be published in a manner that reaches substantially the same audience or number of people to whom the original, defamatory statement was published. RCW 7.96.70.
If a timely retraction that meets the requirements of the law is made, the damages available to the plaintiff diminish to the point that litigation is no longer cost effective. RCW 7.96.060.
In addition, if the time to publish a retraction has passed, a defendant can still avoid litigation by offering, in writing, to retract the defamatory statement. However, the defendant may then become liable to pay the plaintiff his or her attorney fees and costs incurred up to that point. RCW 7.96.090.
Should litigation move forward in spite of a published retraction, the defendant may rely on the retraction for his defense, provided that the plaintiff is notified within sixty days of service, or within ten days after the correction is made. RCW 7.96.080(1). If a plaintiff believes that a retraction was inadequate, they must apply to the court by motion for a declaration that the retraction is inadequate (or was untimely served) within sixty days of service. RCW 7.96.080(2).
As you may have guessed, the UCCDA’s requirements are conducive to pre-litigation negotiations between lawyers. Handled properly, these requirements really do incentivize prompt settlements.
Here at Late Night Law, we mostly represent plaintiffs, and although we like to ensure that our clients are compensated monetarily for unfair suffering, vindicating reputation is our primary objective. Plaintiffs eager to be paid damages awards may view the retraction requirement as an easy way out for defendants. But in our view, a sufficient retraction is more valuable than money damages. For one thing, in states that have yet to adopt the UCCDA, a retraction is harder to obtain than any other form of compensation—at least in our observation and experience.
We have achieved our fair share of cash settlements, and we often prevail on counterparties to remove defamatory publications about our clients from the internet. But outside of states that have adopted the UCCDA, a published retraction is the rarest form of resolution we ever see in defamation cases. That Washington law so strongly incentivizes this particular outcome is sensible in our view, and reduces the overall cost and burden on all concerned, including courts and taxpayers.
If you have a defamation matter in New Mexico or Washington state, contact LATE NIGHT LAW, or call for a free initial consultation at (505) 544-6529.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.