How to make the correct correction

We often get calls on the Hotline concerning when to publish a correction so we thought it would be helpful to write a column about our advice concerning corrections and the statutory mechanics of the statute governing corrections as a refresher.

Everyone, at one time or another, has gotten a call or worse, a drop-in, from an irate individual who claims that he or she has been defamed due to an error contained in your newspaper. This irate individual storms out, but not before he yells "You will hear from my attorney." Dread quickly sets in. You frantically review the article containing the alleged error. You discover, unfortunately, that you did in fact make an error, and want to correct it as soon as possible lest you find yourself embroiled in an expensive and time-consuming lawsuit. So, what should you do first?

The statute concerning demands for correction is KRS 411.051. It states that a newspaper sued for defamation may plead that the publication of a correction should mitigate the damages payable to the plaintiff. The statute also says that the newspaper is protected from a punitive damages award if it made a "conspicuous and timely" correction and if the plaintiff cannot prove that the newspaper knew of the falsity of its news article when it was published or published with reckless disregard for the truth or falsity of the article. This, of course, is the same actual malice standard that is also required of public officials and public figures who sue newspapers.

Unfortunately, the statue does not say that publishing a conspicuous and timely correction upon demand insulates the newspaper from a lawsuit. That means that it is important to take care in the drafting of a correction. You must always be aware that a lawsuit might follow. Therefore, you must be careful in crafting any correction .

Certainly, when a mistake is made, the best approach is to acknowledge it. For example, "Newspaper erroneously reported last week that . . . " or "the October 30 news article incorrectly stated that Bob White was charged with child pornography. No such charge has been made against Mr. White. The newspaper sincerely apologizes for its mistake." Do not go overboard in your eagerness to correct the mistake, such as "the newspaper has no reason to believe that Mr. White has ever been involved in any child pornography." This step, while made in good faith, could lead you down a treacherous path. You do not know whether Mr. White has or has not been involved in child pornography. You only know that he has not been charged.

Any time you receive a demand for a correction, you should treat it as a serious threat to sue you. No matter how convincingly the person or his attorney leads you to believe a correction is all they want, you should never lose sight of the danger that the correction could come back to bite you. Before agreeing to any correction, check with your own attorney or your Hotline attorneys. We will review the demand for correction and help you word the correction so that it not only corrects the error and satisfies your obligations under the correction statute, but also protects your ability to defend yourself in the event of a lawsuit.

Important points about KRS 411.051:

• The individual must make a "sufficient demand for correction." The statute defines that as a demand which is in writing, signed by the plaintiff or his attorney. The demand must specify the statements claimed to be false and defamatory and must state how they are false, setting forth the facts.

• A satisfactory correction may be either: (1) publication of your acknowledgement that the statements are erroneous or (2) publication of the plaintiff's statement of the facts (as set forth in his demand for correction) or a fair summary of them. You have a right to edit any content which is defamatory, obscene or otherwise improper for publication.

• A daily newspaper must publish the correction within 10 business days after receiving the demand for correction. Any other newspaper must publish the correction by the next regular issue which is published after the ten business day period.

• The correction must be "substantially as conspicuous" as the news article containing the allegedly false and defamatory statements. That means, if the news article in question was front page above the fold, the correction should be, as well.

If you have any questions about demands for correction, please don't hesitate to call your Hotline attorneys.

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