Take It Back!

When is a retraction not a retraction? When a court edits it.

In Kelly Sutherlin McLeod Architecture, Inc. v. Schneickert, the California Court of Appeal ruled that if an arbitration agreement is broad enough and if the applicable arbitration rules are, too, then an arbitrator may require a retraction of defamatory statements. However, the appellate court also ruled that the retraction must be narrowly drafted.

So, in this case, the retraction could not state, even implicitly, that the retractor agreed with the arbitrator’s ruling that the defamatory statements were false. And, the retraction could not state that the retractor was retracting, and apologizing for, the statements.

All the “retraction” could say was that the arbitrator had ruled specific statements were defamatory. In other words, there was no retraction, per se, despite the court declaring the letter a “retraction” letter. The effect was a letter that merely identified that an arbitrator had ruled certain statements false and defamatory (which implies falsity, obviously; but, falsity need not imply defamation). What should such a letter be called?

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