HB 584-FN - AS INTRODUCED

2021 SESSION

21-0448

11/04

HOUSE BILL 584-FN

AN ACT relative to guilt by association and defamation by media outlets.

SPONSORS: Rep. Baldasaro, Rock. 5; Rep. Wallace, Rock. 12

COMMITTEE: Judiciary

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ANALYSIS

This bill defines and regulates defamation-in-kind.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

21-0448

11/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty One

AN ACT relative to guilt by association and defamation by media outlets.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  New Chapter; Defamation-In-Kind.  Amend RSA by inserting after chapter 507-G the following new chapter:

CHAPTER 507-H

DEFAMATION-IN-KIND

507-H:1 Short Title.  This chapter may be cited and referred to as the “Stop Guilt By Accusation Act.”

507-H:2 Definitions.  As used in this chapter:

I. “Abuse of process” means the act of bringing and following through with a civil or criminal action or case and controversy for a purpose known to be different from the purpose for which the action was designed. The term includes proceedings that are brought for ulterior reasons than sought on the surface.

II. “Accused” means a person who is blamed for a wrongdoing before a civil court, ethics commission, criminal court, administrative court, or a military tribunal. The term includes a person who has been arrested or formally charged by an indictment, information, or presentment with a crime or ethical violation. The terms means the suspect, respondent, or defendant.

III. “Case and controversy” means any civil, criminal, or ethical proceedings before any governmental, state, federal, and administrative court, ethics commission, military tribunal, or legislative body.

IV. “Court of public opinion” means the general community consensus or opinion.

V. “Defamation” means a false and unprivileged statement of fact that is harmful to someone's reputation, and published with fault, meaning as a result of negligence or malice.

VI. “Defamation-in-kind” means the failure of a media outlet to report on the outcome of a case and controversy after it reported on the initial filings of a case and controversy in which the petitioner ended up receiving less relief than originally sought or could have obtained, which could reasonably result in a conviction in the court of public opinion by placing the accused in a false light that causes him or her to be avoided, marginalized, and shunned by the general public.

VII. “False light” means an untrue or misleading portrayal.

VIII. “Malicious prosecution” means the act of initiating a criminal prosecution, civil suit, or other proceedings against another party with malice and without probable cause.

IX. “Media outlet” means a publication or broadcast program that provides news and feature stories to the public through various distribution channels. Media outlets include newspapers, magazines, radio stations, television stations, and certain websites on the Internet and are part of the press. A media outlet does not involve a person who does not work in the press as a profession or who does not regularly engage in the business of reporting.

X. “Mugshot” means an official photograph taken after an accused suspect is arrested for an alleged criminal violation. The intended purpose of the mugshot is to allow law enforcement to have a photographic record of the arrested individual. Mugshots are also intended to be used for identification by victims and investigators. Usually, mugshots are two-part, one side-view photo, and another front-view.

XI. “Petitioner” means a person or government body who presents a petition to a government authority in a particular case. The term means plaintiffs, claimant, or complainant.

XII. “Press” means the people such as reporters and photographers who work for newspapers, magazines, television, websites, and radio outlets.

507-H:3 Duty of a Media Outlet to Publish a Follow-Up Report on the Outcome of a Case and Controversy Under Certain Conditions Following a Timely Demand Notice.

I. A media outlet is required to provide equal coverage in comparable time, place, magnitude, prominence, scale and manner in the same format as the original reporting of a case and controversy, if:

(a) The media outlet reported on the facts of a case and controversy and the final verdict provided less relief against the accused than originally sought by the petitioner or less than could have been obtained by the petitioner; and

(b) The accused or the authorized agent of the accused sends an electronic or written notice demand to an authorized agent of the media outlet within 20 days after the verdict or outcome, demanding that the facts surrounding the final and actual decision or outcome be reported and published as a follow-up to the original reporting.

II. In the written notification described in paragraph I, the accused or the authorized agent of the accused must include:

(a) The date and source of the first reporting by the media outlet.

(b) A short description of the original allegations, the original relief sought by the petitioner, or the amount of relief that could have been obtained, and a short description of the final outcome and the relief actually awarded.

(c) The location of the venue where the case and controversy was resolved and the docket number of the case and controversy, if one was assigned.

(d) An acknowledgment that the positions asserted in the notice demand are declared under oath under the penalty of perjury pursuant to 28 U.S.C. section 1746.

III. In the notice demand described in paragraph I, the accused or the authorized agent of the accused may include:

(a) A photograph of the accused that authorizes the media outlet to use at its

discretion.

(b) Internet links to or a hard copy of the original coverage published by the media outlet.

(c) A demand to take down any unflattering pictures or mugshots of the accused that were used in the original publication.

(d) Any other facts or pertinent information that the accused deems relevant.

IV. If a media outlet reports on the facts of a case and controversy and displays the mugshot of the accused, and the accused is acquitted, enters into a plea of no contest, or receives an outcome more favorable than originally sought by the petitioner or available to the petitioner:

(a) The media outlet shall take down or remove the mugshot from any digital publication if possible.

(b) The media outlet shall not display the mugshot in the follow-up publication that reports on the actual outcome of the case and controversy and shall only display images that it has the authorization to use.

V. If the result of a civil trial is settled under the terms of a private settlement agreement, the accused is not required to provide the terms of the private settlement agreement but can alert the media outlet that the case and controversy was settled.

507-H:4 Civil Liability; Penalties; Statute of Limitations.

I. After receiving the notice demand by the accused described in RSA 507-H:3, I, a media outlet that reported on the facts of the case and controversy prior to its resolution has 10 days to comply with RSA 507-H:3, I, by publishing the follow-up story that reports on the actual outcome. The accused will have the burden of proof at a civil trial to show that the notice was timely served on the media outlet and met the requirements of RSA 507-H:3, II.

II. If the media outlet fails to comply with the notice demand within 10 days, the accused has one year to file suit from the day of non-compliance and can seek the following relief in a court of competent jurisdiction against the media outlet:

(a) Statutory damages of $10,000.

(b) Attorneys fees and costs.

(c) Actual damages.

(d) Other forms of equitable and injunctive relief.

III. If multiple media outlets fail to comply with the notice demand subjected to the jurisdiction of the court, such media outlets can be added as co-defendants in a consolidated case to preserve judicial economy.

IV. If the media outlet, displayed the mugshot of the accused in the original publication as described in RSA 507-H:3, IV, in a digital format, the accused can seek injunctive relief to have the media outlet remove the image.

507-H:5 Immunity, Exceptions, And Exemptions.

I. A media outlet shall be immune and exempt from liability under this chapter if it:

(a) Is known to publish satire or parody or admits that it is a fake news outlet that is purposed to traffic in fiction peddling for comedic or entertainment purposes.

(b) Reports on the facts of the outcome in comparable time, place, magnitude, prominence, scale and manner of the original publication prior to receiving the notice demand from the accused.

(c) Receives an untimely notice demand 20 days after the day of the verdict by the accused.

(d) Never reported on the case and controversy prior to the decision being reached.

II. The petitioner has no standing under this statute to make a media outlet report on the outcome of a case and controversy regardless of the outcome. Neither the petitioner nor the accused have standing to compel a media outlet to report on the case and controversy after it is filed.

III. If a media outlet reported on a case a controversy involving one or more felony charges and the accused was convicted or pled guilty to one felony count, the accused lacks standing to enforce this chapter.

IV. This chapter does not apply to a media outlet that publishes a documentary, film, or an extensive investigative report regarding a case and controversy.

507-H:6 Waiver of Rights.

I. An accused has the right to waive his rights under this chapter as a part of a negotiated settlement.

II. A court of competent jurisdiction may refuse to acknowledge any waiver of rights described in paragraph I if there is any evidence that the waiver was coerced.

507-H:7 Construction and Purpose.  The purpose of this chapter is to:

I. Prevent unchecked media outlets from acting as slander machines by engaging in defamation-in-kind, abusing the general public, and degrading the integrity of our institutions of justice through selective reporting on cases and controversies that cultivates false narratives to the point that it unduly injures the accused by eroding their civil liberties causing them to be shunned and avoided by the general public due to a cloud of suspicion of wrongdoing that does not exactly align with the original allegations or the relief provided in a case and controversy lodged before a government body.

II. Protect the integrity of the press and encourage good character of the members of the press core.

III. Deter malicious prosecution, abuse of process in general, prosecutors from overcharging defendants, and plaintiffs from seeking excessive reliefs in the original cause complaint.

IV. Promote a mercy-centric justice system because no human is perfect.

V. Deter convictions in the court of public opinion that do not necessarily align with convictions by institutions of justice.

3  Effective Date.  This act shall take effect upon its passage.

LBA

21-0448

1/12/21

HB 584-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to guilt by association and defamation by media outlets.

FISCAL IMPACT:      [ X ] State              [    ] County               [    ] Local              [    ] None

METHODOLOGY:

The Judicial Branch indicates this bill would regulate certain activities by media outlets and creates certain new civil liabilities for media outlets that fail to comply with a timely notice of demand issued against it.   The Branch assumes the bill would generate civil litigation, which would result in a fiscal impact.  It is not possible to determine how many cases, or the nature of the cases, at this time, and is therefore unable to determine the fiscal impact.

It is assumed that any fiscal impact would occur after July 1, 2021.

AGENCIES CONTACTED:

Judicial Branch