Authors: Attorney John C. Mitby & Law Clerk Sarah E. Schuchardt

Phone: 608-575-4077

Email: jmitby@hbslawfirm.com

Retraction Policy – Why Websites Need One

            In the era of “fake news,” retraction policies are a must. Retraction policies state the procedures that a website has in place in order to remove information or statements from its website that are found to be untrue. Refusing to remove a posting or not complying with the relevant state law regarding retraction could result in a defamation action against the website. However, a good faith retraction will likely mitigate the damages that the person complaining can collect from the website.

In order to maintain a defamation action, most states require: (1) that the party that believes it has been defamed request a retraction of the statements before proceeding with the lawsuit; (2) the request must be within a reasonable amount of time after it was posted; (3) if the entity that published the statement issues a “frank and full” retraction, then the publisher is entitled to a reduction in certain types of damages.¹ These requirements show why a retraction policy dictating the procedures for dealing with a retraction request can be crucial for a website.

Wisconsin law regarding actions for libel states that:

Before any civil action shall be commenced on account of any libelous publication in any newspaper, magazine or periodical, the libeled person shall first give those alleged to be responsible…a reasonable opportunity to correct the libelous matter. Such opportunity shall be given by notice specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained…The first issue published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction…A correction, timely published, without comment, in a position and type as prominent as the alleged libel, shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in mitigation of actual damages to the extent the correction published does so mitigate them.

Wis. Stat. § 895.05(2). Although the statute lists only “newspaper, magazine or periodical[s],” it may extend to include other types of publications. Federal law also covers these types of offenses, too. The United States Code defines defamation as:

[A]ny action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.

28 U.S.C. § 4101(1). This indicates that actions for defamation are not just limited to periodicals; they can be commenced based on statements made on the internet or in other types of media. For example, an Indiana man’s conviction for “maliciously conveying false information” on Facebook was upheld in the Seventh Circuit, even though he said that he intended the post to be satire. United States v. Bradbury, 848 F.3d 799 (7th Cir. 2017). Bradbury had posted about killing cops and a local judge and was convicted under 18 U.S.C. § 844(e), which states:

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce…willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt…to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.

18 U.S.C. § 844(e). This case shows that people should be careful with what they post on the internet since it may expose them to liability that they did not foresee.

Although a retraction is not sufficient for threats, it still serves as a way to mitigate the effects of an untrue statement. In order for a retraction to be effective, it must be a complete and total withdrawal of the untrue statement. This requires that the retraction statement be of equal size and prominence on the website as the original statement and that it reach the same audience as the original. ² For example, if a blog posted the original statement on both the blog site and in its newsletter, then the retraction statement must also be on both the blog site and in the newsletter.

If a retraction request is received, the recipient should not ignore it. One of the first steps is to ascertain whether the person requesting the retraction is claiming that the statement defamed them – if not, the requester is unlikely to be able to maintain a suit for defamation. The requester should identify what the factual errors are and explain the true facts. It is good practice to ask the requester to provide documentary proof in support of their assertion that there is an error. An investigation should be undertaken to determine the veracity of the claim. If the statement does contain errors, a retraction should be posted as soon as possible, which is typically interpreted as being within one week of the request. As stated earlier, the retraction should be the same size and in a similar location as the original post. If the website considers it appropriate, it may want to show the proposed retraction to the requester before publishing it. This would ensure that the retraction does not commit the same or similar errors as the original posting.³

Here is an example of a retraction policy:

If retraction/correction request received:

1. Check whether the statements personally involve the requester. If they do not, the requester may not be able to sue for defamation.
2. Ask the requester to state in writing the factual errors in your published statements. You should also ask that the requester provide documentation for his or her claims of error, what the requester believes the true facts are, and explain what the requester wants you to do.
3. Research the accuracy of any factual statements made by the requester. If it is written by another author, follow up with the original author to make sure that there is a strong basis and evidence to support their assertions.
4. If statements do contain factual errors, prepare a correction that concisely states the correct facts.
5. Make sure that this correction is the same size and will be in the same location as the original posting. It should also reach the same audience as the original.
   Make retraction in a timely manner. This should be within one week after receiving the request.
6. If appropriate, consider showing the proposed retraction to the requester before publishing it in order to make sure that the retraction does not repeat the same error.⁴

Do NOT ignore retraction requests, even if they have not provided enough information or are not in compliance with the relevant law.

It is also a good practice for a website or publication to retract statements it finds out to be untrue, even if there has not been a complaint. Retraction policies help websites to avoid increased liability and offer a procedure to follow when faced with a retraction request. Being proactive in crafting a retraction policy will help prepare for the possibility that a website may receive a retraction request. If you have questions regarding retraction policies, you should talk to your attorney.

[1] DMLP.org, Correcting or Retracting Your Work After Production, http://www.dmlp.org/book/export/html/1812.
[2] PublicationEthics.org, Retraction Guidelines, https://publicationethics.org/files/retraction%20guidelines_0.pdf.
[3] OKPress.com, The OPA Legal Services Plan Committee (Oct. 24, 2007), http://www.okpress.com/Websites/okpress/files/Content/223974/RetractionModel.txt.
[4] This retraction policy is based on one published by The OPA Legal Services Plan Committee. OKPress.com, The OPA Legal Services Plan Committee (Oct. 24, 2007), http://www.okpress.com/Websites/okpress/files/Content/223974/RetractionModel.txt.