Thursday, May 30, 1996
Public Notice Via Internet Is Fine—as Additional Notice
NEWSPAPERS HAVE BEEN around since well before the founding of California. Throughout the history of this state, they have furnished the citizenry not only with news of broad interest, but also, in the form of public notices, have provided knowledge of transactions and events of pertinence to those specially affected by them.
In small towns, public notices—dealing, as they do, with real property that's close by, business transactions in the immediate area, and people who are neighbors—are well read.
In the big city, certainly in this sprawling megalopolis, with hundreds of newspapers on the racks, the chances of a legal advertisement being seen by someone who would act upon it if he or she saw it are minimized. The current statutes dealing with public notice through publication hark back to the long-extinct Political Code and do not take into account the need in heavily populated areas for greater notice in some instances than one newspaper can provide.
Sen. Quentin Kopp, I-South San Francisco, has what is, in and of itself, a good idea:
Require that certain types of public notices be posted on the California Page on the Internet.
The notices specified in his bill, SB 1684, which will be voted upon today, are trustee sale notices, fictitious business name statements, and orders to show cause re change of names.
So far, the proposal is innovative and sound.
There's another aspect to it, however, that renders the bill faulty. The web-posting requirement would supplant, not supplement, the requirement of publishing the notices in newspapers.
THE INTERNET IS A wondrous, revolutionary tool for gathering information. But a glare-smeared screen and a mouse will never be a substitute for a newspaper in hand that one can feel, leaf through, mark up, and tear out of. We perceive the newspaper as indomitable, but even if we are mistaken, suffice it to say that the demise of this institution is not imminent, and surely has not come. To remove public notices from their traditional abode in newspapers and route them to a web site would ignore the reality that the Internet, exciting as it is, does not currently enjoy the broad use and acceptance that the newspaper does.
What SB 1684 would do is restrict the potential audience for the affected public notices to those persons who can afford computers (which do cost a bit more than newspapers) and to those who are inclined—as a good many in our population are not—to log onto the Internet. Older members of our population are far less likely than the younger segment to use ATMs, refer to the San Bernardino Freeway as "the 10," or to web-surf.
There are, of course, 64-year-olds who do have the inclination to surf at Malibu or on the Internet—but probably not many.
Yet, a 64-year-old might well have the funds to invest in real property and, if aware that some particular property was about to be auctioned at a foreclosure sale, would attend the auction and bid an amount in excess of the debt. That over-bid would result in funds going to the defaulting property owner. The debtor would obviously be disserved by a system that, for practical purposes, restricted notice to one segment of the population, thus reducing the prospect of an over-bid.
PUBLICATION OF NOTICES in newspapers has another advantage over posting them on the Internet. In newspapers, they are apt to be stumbled across. That stumbling could result in alerting someone who was oblivious to any need to be on guard that action is needed to protect rights. On the Internet, a person would have to go to the relevant site intentionally.
For example, if a person who owned "Acme Bakery" were perusing a local newspaper, a fictitious business name statement proclaiming that someone else planned to operate "Acme Baked Goods" would jump out at the reader. Or, a friend or customer might spot the notice, clip it and send it. The owner of the established bakery would likely have greater success at securing abandonment of the encroaching name at that point than after the competing bakery opened and had signs erected and cake cartons imprinted. However, to see the fictitious business name statement for "Acme Baked Goods" on the Internet, a person would have to be looking for it.
SB 1684, as originally introduced, simply eliminated publication requirements for the three types of notices. In that form, the bill failed to get out of the Senate Judiciary Committee. Later that same day, it passed the committee, but in amended form, reducing the number of insertions of the legal advertisements (and correspondingly reducing the notice to the public). The bill failed on the Senate floor last week. In its latest and final incarnation, pursuant to amendments made yesterday, it would require that the three types of notices be posted on the Internet, dispensing with the publication requirement but, in an apparent bid to mollify the newspapers, stipulates that the notice could only be posted by a newspaper.
That special-interest provision is not even arguably constitutional.
If access to the government site needs to be restricted to curb sham postings, it would be logical to have the postings done, for a fee, by the government agencies with which the notices are reposited. Notices of trustee sales are recorded with the office of county recorder; fictitious business name statements are filed with the office of county clerk; notices of hearings on changes of name are filed with the Superior Court clerk's office. (In many counties, one office will serve all three functions.)
If there is some reason why posting of notices on the Internet needs to be done other than by government agencies (and we doubt that there is), there is surely no rational basis for allowing only newspapers to engage in that non-newspaper-related commercial activity. What Kopp is doing is throwing the newspapers a bone they would not have time to gnaw before it would be snatched from them by the courts.
AS WE SEE it, adding an Internet-posting requirement, or requiring in densely populated areas that publication be in more than one newspaper, would be salutary. The key word is "adding."
We urge that Kopp's bill be amended to provide that in addition to the requirement of publication of the notices in newspapers, the notices be posted on the California Home Page; that the site be monitored not only for frequency of use but numbers of different users logging onto it; that users be urged to provide e-mail feedback as to their purposes in visiting the site and benefits derived; and that the requirement expire effective Jan. 1, 1999 unless re-enacted.
In that form, we believe, the bill should be passed. In its present form, it should be scuttled.
Copyright 1996, Metropolitan News Company