Court of Appeal:
By a MetNews Staff Writer
A Civil Code provision that limits liability for libel to special damages absent a statutory demand for a retraction cannot be relied upon by publishers of online articles without a particularized showing that publications are made at least weekly, the Third District Court of Appeal held Friday.
Section 48a(a) provides:
“In any action for damages for the publication of a libel in a daily or weekly news publication,...plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section.”
It specifies that “ ‘[d]aily or weekly news publication’ means a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.” A demand for correction, it sets forth, takes the form of “a written notice specifying the statements claimed to be libelous and demanding that those statements be corrected” which “must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.”
Ruslan Gurzhiy, who publishes The Slavic Sacramento, online, insisted that Ukraine Relief and others suing him for libel have not shown the probability of prevailing on the merit, the second prong of the anti-SLAPP statute, Code of Civil Procedure §425.16. It was undisputed that the first prong—protected speech—was applicable.
Gurzhiy maintained that he is shielded by §48a(a) because no statutory demand for retraction was made and no special damages were alleged, and that his anti-SLAPP motion should have been granted in full. Instead, Sacramento Superior Court Judge David Brown granted it as to some allegations, only.
Justice Andrea L. Hoch authored the unpublished opinion which rejects contention that §48a(a) protects the defendant. She pointed to this 2015 declaration by the Legislature:
“It is not the intent of the Legislature that Section 48a of the Civil Code should apply to periodicals that publish at longer than weekly intervals, nor is it the intent of the Legislature that Section 48a of the Civil Code should apply to casual postings on a social networking Internet Web site, chat room, electronic bulletin board, discussion group, online forum, or other related Internet Web site.”
Gurzhiy was sued over three postings relating to running humanitarian aid organizations and persons running them, alleging that millions of dollars in donated funds have been lost or wasted.
“Gurzhiy’s declaration that the articles at issue this case were published between June 15, 2017, and February 25, 2018, means that there was a 36-week span between the publications. Establishing The Slavic Sacramento as a weekly publication required a showing that it published at least 36 times during the relevant time period.… Gurzhiy, however, did not provide any dates of publication for The Slavic Sacramento aside from the three articles alleged by plaintiffs to be defamatory.”
She went on to say:
“Here, Gurzhiy’s declaration offers nothing more than the conclusory statement that he published The Slavic Sacramento ‘on a weekly basis (between two and five articles each week) since 2014.’ Gurzhiy describes no publication schedule, provides no list of issues, and gives no way to determine the truth of his statement. In short, his statement offers only a conclusion that did not meet his burden of proof….For the same reason, we also reject the argument of amici curiae. Gurzhiy’s mere assertion of weekly publication, without more, did not suffice to show that The Slavic Sacramento was a weekly publication under section 48a.”
Amici included the California News Publishers Association and the District of Columbia-based Reporters Committee for Freedom of the Press.
Hoch said Brown properly denied the anti-SLAPP motion as to certain of the statements which were shown by the plaintiffs to be false. Four statements, however, which were not stricken from the complaint should have been, she wrote, because the are subjective statements not provably true or false.
Hoch observed at the outset of the opinion:
“This case lies at the intersection of the right to freedom of the press and the right of private individuals to remain free of unjust damage to their reputations.”
The case is Ukraine Relief v. Gurzhiy, C088778.
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