When is a statement “republished” on the internet or in social media, so as to constitute a new cause of action for defamation restarting the statute of limitations?
A: Republication occurs when (1) the original publication was modified; or (2) the republication was directed to a new, different audience not merely though a link and reference which may bring readers’ attention to the existence of an article or defamatory post.
A defamatory statement, generally, is a factual statement provably true or false that subjects an individual to contempt or ridicule, one that harms a person’s reputation by lowering the community’s estimation of him or by deterring others from wanting to associate or deal with him.
Generally, every repetition of a defamatory writing or utterance gives rise to a separate cause of action under the multiple publication rule. Additionally, liability is generally imposed on one who repeats or republishes the defamatory statement of another. However, the application of this rule to mass publications would lead to an endless replication of legal actions and threaten a publisher with boundless financial liability. To mitigate the harshness and unfairness of the inflexible application of the multiple publication rule, courts developed the “single publication rule. Restatement § 577A(2) cmt. b Under the single publication rule, a speech or a single radio or television broadcast delivered to an audience of thousands of people or the issuance of the first edition of a newspaper or book gives rise to only one cause of action. Restatement § 577A(2) cmt. b, § 577A(3) cmt. c. The single publication rule “protect[s] defendants and the courts from the numerous suits which might be brought for the same words” carried through modern means of mass communication. Restatement § 577A(3) cmt. c In short, the single publication rule gives speech the protection it needs from vexatious and financially ruinous lawsuits that might stifle and inhibit the expression of ideas that inform and enlighten the public.
Restatatement 2d of Torts,§ 577A Single and Multiple Publications
(1) Except as stated in Subsections (2) and (3), each of several communications to a third person by the same defamer is a separate publication.
(2) A single communication heard at the same time by two or more third persons is a single publication.
(3) Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.
(4) As to any single publication,
(a) only one action for damages can be maintained;
(b) all damages suffered in all jurisdictions can be recovered in the one action; and
(c) a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions.
The single publication rule, however, has limits. The reprinting of an article in the next issue of a magazine or the delivery of the second edition of a book is deemed a republication—a second publication—giving rise to a new cause of action and the running of a new statute of limitations. Restatement § 577A(3) cmt. d. Libelous statement differed in material respects in the various editions” [***23] and therefore “a cause of action must be afforded for each edition of a newspaper. Cox Enters., Inc. v. Gilreath, 142 Ga. App. 297, 235 S.E.2d 633, 634 (Ga. Ct. App. 1977) Republication occurs when a later-released book “had been substantially modified” from earlier version. Rinaldi v. Viking Penguin, Inc., 101 Misc. 2d 928, 422 N.Y.S.2d 552, 556 (Sup. Ct. 1979), aff’d, 52 N.Y.2d 422, 420 N.E.2d 377, 438 N.Y.S.2d 496 (N.Y. 1981).
Most jurisdictions apply the single publication rule to internet publications. Republication triggers the start of a new statute of limitations. Restatement § 577A(3) cmt. d.. Firth v. State, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463 (2002), Churchill v. State, 378 N.J. Super. 471, 479, 876 A.2d 311, 316 (Super. Ct. App. Div. 2005); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 89-90 (2d Cir.2003); Lane v. Strang Communications Co., 297 F.Supp.2d 897, 899-900 (N.D.Miss.2003); Mitan v. Davis, 243 F.Supp.2d 719, 721-724 (W.D.Ky.2003); Simon v. Ariz. Bd. of Regents, 28 Media Law Reports 1240, 1245-1246 (Ariz.Sup.Ct. 1999); Traditional Cat Assn, Inc. v. Gilbreath, 118 Cal.App.4th 392, 13 Cal.Rptr.3d 353, 355, 358-363 (2004); McCandliss v. Cox Enters., 265 Ga.App. 377, 593 S.E.2d 856, 858 (2004), reconsid. denied (Feb. 2, 2004), cert. denied (May 24, 2004); Abate v. Me. Antique Digest, 2004 Mass. Super. LEXIS 31, 2004 WL 293903, *1-2 (Mass.Sup.Ct. Jan. 26, 2004); E.B. v. Liberation Publ’ns, Inc., 7 A.D.3d 566, 777 N.Y.S.2d 133, 134 (2004); Regan v. Sullivan, 557 F.2d 300 (2 Cir. 1977); Hartmann v. Time, Inc., 166 F.2d 127 (3d Cir. 1947), certiorari denied, 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763; Wheeler v. Dell Pub. Co., 300 F.2d 372 (7 Cir. 1962); Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921); Ogden v. Association of the United States Army, 177 F.Supp. 498 (D.D.C.1959); Carroll City/County Hosp. Auth. v. Cox Enterprises, Inc., 147 Ga.App. 863, 250 S.E.2d 550 (1978); O’Malley v. Statesman Printing Co., 60 Idaho 326, 91 P.2d 357 (1939); Winrod v. Time, Inc., 334 Ill.App. 59, 78 N.E.2d 708 (1948); McGlue v. Weekly Publications, 63 F.Supp. 744 (D.Mass.1946); Church of Scientology of Minnesota v. Minnesota State Medical Ass’n Fdn., 264 N.W.2d 152 (Minn.1978); Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344 (1943); Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496 (1908), error dismissed, 215 U.S. 589, 30 S.Ct. 406, 54 L.Ed. 340; Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948); Kilian v. Stackpole Sons, Inc., 98 F.Supp. 500 (M.D.Pa.1951); Stephenson v. Triangle Publications, 104 F.Supp. 215 (S.D.Tex.1952); Gordon v. Journal Pub. Co., 81 Vt. 237, 69 A. 742 (1908).
So what constitutes a “republication” on the internet? Republication occurs when (1) the original publication was modified; or (2) the republication was directed to a new, different audience.
A modified article may be considered a republication.
In Davis v. Mitan (In re Davis), the United States District Court for the Western District of Kentucky held that “where substantive material is added to a website, and that material is related to defamatory material that is already posted, a republication has occurred.” 347 B.R. 607, 612 (W.D. Ky. 2006). Similarly, in Larue v. Brown, the Court of Appeals of Arizona held that republication occurs on a website when an “update or modification [of an internet publication] affects the substance of the allegedly defamatory material.” 235 Ariz. 440, 333 P.3d 767, 772 (Ariz. Ct. App. 2014), finding that the defendants’ responses to readers’ comments—posted directly below the original articles—not only repeated the earlier defamatory allegations, but “also added to and altered the substance [*255] of the original material.” Id. at 773. The court held that when the the statement itself is substantively altered or added to, or the website is directed to a new audience, the statement will be considered to be “republished.” The addition of new material to a website unrelated to an earlier allegedly defamatory report posted on the site will not reset the statute of limitations. Firth v. State, 98 N.Y.2d 365, 775 N.E.2d 463, 464, 747 N.Y.S.2d 69 (N.Y. 2002) The court observed that “many Web sites are in a constant state of change, with information posted sequentially on a frequent basis.” Id. at 467. Hence, to find republication with every minor alteration to a website “would either discourage the placement of information on the Internet or slow the exchange of such information, reducing the Internet’s unique advantages. In order not to retrigger the statute of limitations, a publisher would be forced either to avoid posting on a Web site or use a separate site for each new piece of information. These policy concerns militate against a holding that any modification [**318] to a Web site constitutes a republication of the defamatory communication itself.”
When a defamatory statement is published intending to and actually reaching a new audience not merely though a link and reference which may bring readers’ attention to the existence of an article or defamatory post, it may be considered a republication.
Republication, retriggering the period of limitations, occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely “a delayed circulation of the original edition” (Rinaldi v Viking Penguin, 52 NY2d at 435; Restatement [Second] of Torts § 577A, Comment d, at 210, supra).
Relevant to this inquiry is whether the subsequent publication is intended to and actually reaches a new audience.
The court in Martin v. Daily News, L.P., 2012 NY Slip Op 50660(U), ¶ 3, 35 Misc. 3d 1212(A), 1212A, 951 N.Y.S.2d 87, 87 (Sup. Ct.) stated that whether a particular event constitutes a republication giving rise to a new cause of action with a refreshed limitations period must be analyzed on a case-by-case basis. See Rinaldi v Viking Penguin, Inc., 73 AD2d 43, 45, 425 N.Y.S.2d 101 (1st Dept 1980), affd 52 NY2d 422, 420 N.E.2d 377, 438 N.Y.S.2d 496 (1981). Thus, for example, repetition of a defamatory statement in a later edition of a book, magazine or newspaper may give rise to a new cause of action (see Rinaldi, 52 NY2d at 433-435 [hard-cover and paperback editions of the same book]; Cook v Conners, 215 NY 175, 179, 109 N.E. 78 (1915) [morning and afternoon editions of newspapers owned and published by the same individual]). See also Gregoire v G.P. Putnam’s Sons, 298 NY 119, 123, 81 N.E.2d 45 (1948)(book sales from stock are not republications); Lehman v Discovery Communications, Inc., supra [***7] (rebroadcast of television show is a republication intended to reach a new audience); Haefner v New York Media, LLC, 27 Misc 3d 1208[A], 910 N.Y.S.2d 405, 2009 NY Slip Op 52765[U], 2009 WL 6346547, at *6 [Sup. Ct. NY Co. 2009] (“digital Kindle Editions’ of books . . . should be treated as merely a delayed circulation of the original edition,’ rather than as a republication thereof”); Firth v State of New York, 306 AD2d 666, 667-668, 761 N.Y.S.2d 361 (3d Dept 2003) (“Firth II”) (allegation that defamatory material was relocated to a new directory on the same website sufficiently stated a cause of action where defendant failed to submit an affidavit of an individual with personal knowledge of facts surrounding the alleged republication).
Haefner v New York Media, LLC, 82 AD3d 481, 482, 918 N.Y.S.2d 103 (1st Dept 2011), for the proposition that the inclusion of hyperlinks in an Internet publication does not give rise to republications. Haefner involved an article containing a link to a previously published allegedly defamatory article. There, the hyperlink merely provided a new means of accessing the first article. In contrast in Martin v. Daily News, L.P. the court found that a modification that provided hyperlinks to social media (links to facebook via share buttons) and networking sites in the updated website provided a new means for disseminating it. Nevertheless the court found that it did not reset the statute of limitations. It held, the audience has always had the capacity to share Internet news items by e-mail or by print and distribution to whomever they choose. Merely adding a technical enhancement providing website visitors additional ways to forward website content to others depended on the action of third-parties, to wit,website visitors who forward website content to non-visitors, by whatever means and was therefore not a republication.
In Salyer v. Southern Poverty Law Center, Inc., 701 F. Supp. 2d 912 (W.D. Ky. 2009), the plaintiff argued that when the defendant published an article on a new section of its website in 2008 linking back to an allegedly defamatory 2006 article, the 2008 article republished the 2006 article because the purpose of the hyperlink was to entice new readers to click on the link and be directed to the article. The plaintiff in Salyer, however, [*57] did not contend that the new article, which itself made no specific mention of the plaintiff, was defamatory, and the court observed that “it would be a different case had the . . . 2008 article restated the defamatory remarks about Plaintiff. In such a case, the . . . 2008 article itself could be the basis for Plaintiff’s defamation claim.” Thus, the court concluded that HN23 “the critical feature of republication is, again, that the original text of the article was changed or the contents of the article presented directly to a new audience.”and In re Philadelphia Newspapers, LLC, provide more useful guidance.
Perlman v. Vox Media Inc., Civil Action No. 10046-VCP, 2015 Del. Ch. LEXIS 248, at *56-57 (Ch. Sep. 30, 2015) the court held that that neither a hyperlink to an unchanged article, nor a mere reference, without more, is a republication. Because a hyperlink is more like a reference than a separate publication, “[m]aking access to the referenced article easier does not appear to warrant a different conclusion from the analysis of a basic reference.” Id. at 917; see also In re Phila. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012) (holding “though a link and reference may bring readers’ attention to the existence of an article, they do not republish the article”). Life Designs Ranch, Inc. v. Sommer, 191 Wash. App. 320, 336, 364 P.3d 129, 138 (2015)
The court in Mineral Res. Int’l, Inc. v. Trace Minerals Research, L.C. (In re Mineral Res. Int’l, Inc.), 565 B.R. 684, 697-98 (Bankr. D. Utah 2017)
provided a concise summary, stating determining whether a defamatory statement has been republished on the Internet is not as straightforward. “Because online fora and content delivery systems are frequently altered, many courts have struggled to parse whether specific technological changes in the format and delivery of allegedly defamatory statements have functioned to republish the statements to new audiences . . . . Generally, the courts agree that [**23] republication must at least involve an ‘affirmative act.'” For example, “where substantive material is added to a website, and that material is related to defamatory material that is already posted, a republication has [*698] occurred.” But if a statement is “posted to a generally accessible website,” it is not republished by:
• a third party’s posting the statement elsewhere on the internet,
• passively maintaining the website to which the defamatory statement is posted,
• failing to remove a statement from a website after receiving notice of its falsity,
• adding an unrelated story to the web page that hosts the allegedly defamatory statement,
• creating hypertext links to previously published statements,
• revising other information at the URL at which the allegedly defamatory statement is found, but leaving the statement itself intact,
• updating a website’s user interface to give visitors additional avenues to access the allegedly defamatory statements, or
• changing the URL at which the allegedly defamatory statement was posted (i.e., posting the statement verbatim to a new URL).
Ultimately, “the test of whether a statement has been republished is if the speaker has affirmatively reiterated [**24] it in an attempt to reach a new audience that the statement’s prior dissemination did not encompass.”
Mineral Res. Int’l, Inc. v. Trace Minerals Research, L.C. (In re Mineral Res. Int’l, Inc.), 565 B.R. 684, 697-98 (Bankr. D. Utah 2017)
In summary, there are many possible legal basis and defenses to a defamation claim. Defamation is a complex area of the law. Obviously, not all the possible defenses are set out here. You may be able to obtain a recover in a defamation claim. This firm handles both plaintiff and defense cases in defamation, libel and slander. Contact this firm for a consultation.
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Thomas H. Roberts, Esq.
Andrew T. Bodoh, Esq.
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