§ 99-1. Libel against newspaper; defamation by or through radio or television station; notice before action.

1. Before any action, either civil or criminal, is brought for the publication, in a newspaper or periodical, of a libel, the plaintiff or prosecutor shall at least five days before instituting such action serve notice in writing on the defendant, specifying the article and the statements therein which he alleges to be false and defamatory.
2. Before any action, either civil or criminal, is brought for the publishing, speaking, uttering, or conveying by words, acts or in any other manner of a libel or slander by or through any radio or television station, the plaintiff or prosecutor shall at least five days before instituting such action serve notice in writing on the defendant, specifying the time of and the words or acts which he or they allege to be false and defamatory.

History. 1901, c. 557; Rev., s. 2012; C.S., s. 2429; 1943, c. 238, s. 1.

Cross References.

As to statute of limitations for libel and slander, see G.S. 1-54 .

As to pleadings in libel and slander, see G.S. 1A-1 , Rule 9.

As to allowance of costs in an action for libel and slander, see G.S. 6-18 .

As to criminal statutes on libel and slander, see G.S. 14-47 .

Legal Periodicals.

For article, “Restrictions on a Free Press,” wherein various phases of rights arising out of libel are discussed, see 4 N.C.L. Rev. 24 (1926).

For note on misstatement of fact about public figure, see 44 N.C.L. Rev. 442 (1966).

For note on requirements for collection of substantial damages in actionable per se defamation, see 46 N.C.L. Rev. 160 (1967).

For note, “Renwick v. News & Observer Publishing Co.: North Carolina Rejects the False Light Invasion of Privacy Tort,” see 63 N.C.L. Rev. 767 (1985).

For comment, “Constitutional Protection for Nonmedia Defendants: Should There be a Distinction Between You and Larry King?,” see 33 Campbell L. Rev. 173 (2010).

For comment, “The Shadow in the Comments Section: Revealing Anonymous Online Users in the Social Media Age,” see 41 Campbell L. Rev. 225 (2019).

For comment, “Defamation in the Age of Social Media: Why North Carolina’s ‘Micro-influencers’ Should be Classified as Limited Purpose Public Figures,” see 42 Campbell L. Rev. 335 (2020).

For note, “Social Media and the Message: Facebook, Forums, and First Amendment Follies,” see 55 Wake Forest L. Rev. 217 (2020).

CASE NOTES

Constitutionality. —

Session Laws 1901, c. 557, known as the “London Libel Law” and subsequently appearing as G.S. 2429, 2430 and 2431 of the Consolidated Statutes (now subsection (a) of this section, G.S. 99-2(a) , and G.S. 99-3 , respectively), was held constitutional in Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904). See also Pentuff v. Park, 194 N.C. 146 , 138 S.E. 616, 1927 N.C. LEXIS 35 (1927).

Complaint Must Allege Notice. —

Under this section, a complaint in an action for libel must allege the giving of five days’ notice to the defendant in writing, specifying the article and the statements alleged to be false. Williams v. Smith, 134 N.C. 249 , 46 S.E. 502, 1904 N.C. LEXIS 91 (1904).

Failure to Allege Notice. —

In an action against a newspaper for libel, the failure of the complainant to allege the five days’ notice rendered it demurrable. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

Amendment Showing Notice. —

Where a demurrer was sustained to a complaint for libel against a newspaper because it failed to appear that notice of the action had been given, the trial court could permit an amendment showing that fact. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

Letter as Sufficient Notice. —

A letter written by plaintiff and received by defendant, in which demand was made for a retraction and apology for a clearly specified article, and in which the alleged false and defamatory statements were plainly indicated, was a sufficient notice in writing as required by this section, the provisions of former G.S. 1-585 (see now G.S. 1A-1 , Rule 5) relating to notice in judicial proceedings after suit has been instituted, not being applicable. Roth v. Greensboro News Co., 214 N.C. 23 , 197 S.E. 569, 1938 N.C. LEXIS 251 (1938).

Failure to Give Notice. —

In an action for libel against a newspaper, the failure to give notice of the action as required only relieves the paper of punitive damages. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

When Notice Unnecessary. —

In an action for libel, where the newspaper publishes a retraction, no notice need be given. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

Whether the provisions of this Chapter as to notice to the defendant in an action for libel, looking to retraction and apology, apply to individuals having no connection with a newspaper publishing the libel, was questioned in Paul v. National Auction Co., 181 N.C. 1 , 105 S.E. 881, 1921 N.C. LEXIS 1 (1921).

Compensatory Damages. —

This section and G.S. 99-2 , relating to notice looking to a retraction and apology, having significance only on the question of punitive damages, do not include compensatory damages for “pecuniary loss, physical pain, mental suffering, and injury to reputation.” In Osborn v. Leach, 135 N.C. 628 , 43 S.E. 811 (1904), it was held that an action for libel may proceed for the recovery of compensatory damages, whether the notice has been given or otherwise. Paul v. National Auction Co., 181 N.C. 1 , 105 S.E. 881, 1921 N.C. LEXIS 1 (1921). See Kindley v. Privette, 241 N.C. 140 , 84 S.E.2d 660, 1954 N.C. LEXIS 569 (1954).

For case in which service of notice under former G.S. 1-585 was distinguished, see Roth v. Greensboro News Co., 214 N.C. 23 , 197 S.E. 569, 1938 N.C. LEXIS 251 (1938).

Failure to Issue a Retraction. —

Failure to print a retraction under the provision after plaintiff requested one was sufficient to satisfy a breach of a legal duty for purposes of plaintiff’s negligent infliction of emotional distress claim. Araya v. Deep Dive Media, LLC, 966 F. Supp. 2d 582, 2013 U.S. Dist. LEXIS 117841 (W.D.N.C. 2013).

§ 99-2. Effect of publication or broadcast in good faith and retraction.

1. If it appears upon the trial that said article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in said article were true, and that within 10 days after the service of said notice a full and fair correction, apology and retraction was published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared, and in as conspicuous place and type as was said original article, then the plaintiff in such case, if a civil action, shall recover only actual damages, and if, in a criminal proceeding, a verdict of “guilty” is rendered on such a state of facts, the defendant shall be fined a penny and the costs, and no more.
2. If it appears upon the trial that such words or acts were conveyed and broadcast in good faith, that their falsity was due to an honest mistake of the facts, or without prior knowledge or approval of such station, and if with prior knowledge or approval that there were reasonable grounds for believing that the words or acts were true, and that within 10 days after the service of said notice a full and fair correction, apology and retraction was conveyed or broadcast by or over such radio or television station at approximately the same time of day and by the same sending power so as to be as visible and audible as the original acts or words complained of, then the plaintiff in such case, if a civil action, shall recover only actual damages, and if, in a criminal proceeding, a verdict of “guilty” is rendered on such state of facts, the defendant shall be fined a penny and costs, and no more.

History. 1901, c. 557; Rev., s. 2013; C.S., s. 2430; 1943, c. 238, s. 2.

CASE NOTES

Constitutionality. —

Subsection (a) of this section, providing that a newspaper publishing a libel may avoid, under certain conditions, the payment of punitive damages, is not discriminatory, and is a constitutional enactment. Pentuff v. Park, 194 N.C. 146 , 138 S.E. 616, 1927 N.C. LEXIS 35 (1927). See also Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

A recovery of actual damages does not abridge the freedom of the press. Pentuff v. Park, 194 N.C. 146 , 138 S.E. 616, 1927 N.C. LEXIS 35 (1927).

Where a statute for libel applies equally to all newspapers and periodicals, it does not amount to unconstitutional discrimination. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

Form of Retraction. —

While this section does not prescribe any particular form of retraction, it does require a categorical retraction and apology. The mere statement that defendant had come into possession of information contrary to that theretofore published was insufficient to meet the requirements of this section, nor was it incumbent on plaintiff to approve or disapprove thereof, and this failure to do so did not exculpate defendant or preclude the submission of an issue of punitive damages. Roth v. Greensboro News Co., 217 N.C. 13 , 6 S.E.2d 882, 1940 N.C. LEXIS 169 (1940).

“Actual Damages”. —

The “actual damages” recoverable in a suit for libelous publication by a newspaper in the event of a retraction, allowed by the statute, is for pecuniary loss, direct or indirect, or for physical pain and inconvenience. Pentuff v. Park, 194 N.C. 146 , 138 S.E. 616, 1927 N.C. LEXIS 35 (1927).

Actual damages also include mental suffering and injury to reputation. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

Damages When Defendants Do Not Comply. —

Where the defendants did not avail themselves of the privilege given them under this section, the damages that could be awarded would include punitive as well as actual damages. Pentuff v. Park, 194 N.C. 146 , 138 S.E. 616, 1927 N.C. LEXIS 35 (1927).

Damages as “Property”. —

The right to have punitive damages assessed is not property, but the right to recover actual or compensatory damages is property. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

Only Actual Damages Recoverable Where Publication in Good Faith Is Followed by Correction. —

Where plaintiff’s evidence established a false publication, and defendant’s evidence showed that the publication was made in good faith through error, and that a correction and retraction was published upon defendant ascertaining the facts, plaintiff was entitled to recover the actual damage sustained by him. Lay v. Gazette Publishing Co., 209 N.C. 134 , 183 S.E. 416, 1936 N.C. LEXIS 409 (1936).

No Punitive Damages May Be Recovered in the Absence of Malice or Wantonness and Recklessness. See Lay v. Gazette Publishing Co., 209 N.C. 134 , 183 S.E. 416, 1936 N.C. LEXIS 409 (1936).

For definition of actual malice, see Cline v. Brown, 24 N.C. App. 209, 210 S.E.2d 446, 1974 N.C. App. LEXIS 1964 (1974), cert. denied, 286 N.C. 412 , 211 S.E.2d 793, 1975 N.C. LEXIS 1195 (1975).

When Malice May Not Be Inferred by Jury. —

Malice may not be inferred by the jury from a false publication when defendant’s uncontradicted evidence rebuts the presumption by showing that the publication was made in good faith through error, and that a correction and retraction was published upon defendant ascertaining the facts. Lay v. Gazette Publishing Co., 209 N.C. 134 , 183 S.E. 416, 1936 N.C. LEXIS 409 (1936).

Defendant’s Pleading. —

In an action for libel against a newspaper, the paper having pleaded a retraction of the publication, it is necessary for the defendant to show that the publication was made in good faith, and with reasonable ground to believe it to be true, in order to relieve the paper from punitive damages. Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811, 1904 N.C. LEXIS 73 (1904).

§ 99-3. Anonymous communications.

The two preceding sections [G.S. 99-1 and 99-2] shall not apply to anonymous communications and publications.

History. 1901, c. 557, s. 3; Rev., s. 2014; C.S., s. 2431.

CASE NOTES

An article signed “Smith” is not an anonymous publication under this section. Williams v. Smith, 134 N.C. 249 , 46 S.E. 502, 1904 N.C. LEXIS 91 (1904).

§ 99-4. [Repealed]

Repealed by Session Laws 1975, c. 402.

§ 99-5. Negligence in permitting defamatory statements by others essential to liability of operator, etc., of broadcasting station.

The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damage for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless such owner, licensee or operator shall be guilty of negligence in permitting any such defamatory statement.

History. 1949, c. 262.

Legal Periodicals.

For brief comment on this section, see 27 N.C.L. Rev. 488 (1949).