A Texas appeals court just took the first crack at interpreting an ambiguously troubling aspect of the Defamation Mitigation Act in Hardy v. Communication Workers of Am. Local 6215 AFL-CIO, et al., 05-16-00829-CV, 2017 WL 1192800 (Tex. App.—Dallas Mar. 31, 2017, __________)
The legislature crafted the Defamation Mitigation Act in 2013. Tex. Civ. Prac. & Rem. Code § 73.051-.062. The purpose is designed to provide an opportunity to retract their defamatory statements prior to being sued, and accordingly, reduce litigation. The Texas law is based on the Uniform Correction or Clarification of Defamation Act, which was not fully adopted by the Texas legislature.
Defamation Under Texas Law
Under the Texas law, a person may not “maintain an action for defamation” unless “the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant,” or “the defendant has made a correction, clarification, or retraction.” Tex. Civ. Prac. & Rem. Code § 73.055(a).
Under section 73.055(b), a request for a correction, clarification, or retraction is timely if made during the period of limitation for commencement of an action for defamation, which is among the shortest limitation periods: one year. Tex. Civ. Prac. & Rem. Code § 16.002(a).
Retraction Requesting
What then does a timely and sufficient request for retraction mean? Does it need to be made prior to the expiration of the statute of limitations? If not so made, what happens to the plaintiff’s cause of action?
In the Hardy case, a candidate for Dallas County District Clerk alleged she was defamed a few days before the election. She did not send any request for retraction to the defendants, but simply filed suit within the one-year limitations period. The defendants moved for summary judgment stating that because the plaintiff did not timely request retraction, the plaintiff could not “maintain” a lawsuit. The trial court agreed, and granted summary judgment dismissing the case.
Context of the Word “Maintain”
The appeals court noted the language of the statute. The statute did not state a case could be dismissed if a retraction letter was not timely sent, but that a plaintiff could not maintain a suit until that happened. The court considered another provision of the Defamation Mitigation Act, section 73.062(a), which allowed a defendant to file a plea in abatement requiring the court to automatically abate the case, unless a plaintiff timely sends a request for retraction. The court looked at the common definition of “maintain,” and stated that a plaintiff who fails to make the required request may not keep her claim “in its existing state,” sustain it “against opposition or danger,” or continue or persevere in the claim in the face of the defendant’s request for abatement.
In looking at these provisions, and “reading the DMA in its entirety, giving effect to all its provisions and considering the purpose of the statute,” the court held that the plaintiff may not maintain a lawsuit in face of a timely-filed motion to abate, but the lawsuit is not subject to dismissal based on the failure to timely and sufficiently request a correction, clarification, or retraction.
No other court has weighed in on this subject, and it is unknown whether the defendants will appeal the case to the Texas Supreme Court. The best practice is to avoid this pitfall by timely and sufficiently requesting retraction.
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