Texas First Amendment Practitioners know and utilize the Defamation Mitigation Act (“DMA”) Tex. Civ. Prac. & Rem. Code §§ 73.051-.062. The DMA applies to all forms of defamation and provides statutory protections against and limitations on defamation claims. The undecided question is, “if a plaintiff fails to comply with the DMA, do they lose the entire claim or just exemplary damages?”
Here is the troublesome section of the statute . . .
Sec. 73.055. REQUEST FOR CORRECTION, CLARIFICATION, OR RETRACTION. (a) A person may maintain an action for defamation only if:
(1) the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant; or
(2) the defendant has made a correction, clarification, or retraction.
(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.
(c) If not later than the 90th day after receiving knowledge of the publication, the person does not request a correction, clarification, or retraction, the person may not recover exemplary damages.
Sec. 73.059. EFFECT OF CORRECTION, CLARIFICATION, OR RETRACTION. If a correction, clarification, or retraction is made in accordance with this subchapter, regardless of whether the person claiming harm made a request, a person may not recover exemplary damages unless the publication was made with actual malice.
While there is a split of authority in Texas, the majority of COAs to weigh in have determined lack of compliance with the DMA only precludes recovery of exemplary damages. See Cunningham v. Waymire, 14-17-00883-CV, 2019 WL 5382597, at *17 (Tex. App.—Houston [14th Dist.] Oct. 22, 2019, no pet.) (Houston [14th], Dallas, Austin, and Amarillo bar recovery of exemplary damages while [ Houston [1st Dist.] and 5th Cir. (unpublished) barring the claim in toto).
Warner Bros Entertainment Inc. et al. v. Robert Jones, 18-0068, 2020 WL 2315280 (Tex. May 8, 2020) appeared set to unwind this gordian knot of textual interpretation. In 2014, TMZ, not often confused with hard hitting journalism, ran an article strongly implying that former Dallas Cowboys linebacker Robert Jones was a suspect in hiring a hitman to “take out a hit” on his agent.
As it turns out, this was nonsense, Jones’ attorney immediately demanded a retraction from TMZ, and litigation later ensued. The “TMZ Defendants” filed the obligatory Texas Anti-Slapp which the trial court denied. On Dec. 21, 2017, the Austin COA determined that the Texas Anti-Slapp applied to Jones’ claims, some claims survived while others were subject to dismissal. (538 S.W 3d 781 (2017)).
Within that argument, the TMZ Defendants sought dismissal of the defamation claims because of Jones’ alleged failure to comply with the DMA by not timely requesting a clarification, retraction, or correction. The Austin COA did not reach this issue, adopting the legal analysis that failure to comply simply bars exemplary damages. The TMZ Defendants appealed to the Texas Supreme Court, which granted the petition for review. But rather than answer “what is the impact upon of a plaintiff’s failure to comply with the DMA (dismissal or simply a loss of exemplary damages),” the TSC determined that Jones made a timely and sufficient request under the DMA.
In discussing the DMA, we correctly observe the Legislature has enacted specific remedies, including “a time-limited process by which a defendant can secure ‘automatic[ ]’ abatement of the lawsuit” when no timely and sufficient request has been made “as required by Section 73.055.”54 But we do not reach the hotly contested issue about the availability of any other remedies that may or may not be inferred from the statutory language.
We hold that Jones satisfied Section 73.055(a) of the Defamation Mitigation Act because he made a timely and sufficient Request and because TMZ actually made a Change to the story. We therefore affirm the court of appeals’ judgment and remand the case to the trial court for further proceedings.
This leaves for another day the thorny question that keeps Texas First Amendment lawyers up at night, while Mr. Jones will finally have his day in Court.
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