Publication, Republication and Defamation Online (Guest Post)

This post was primarily authored by David Axelson, a student at the Loyola University Chicago School of Law and a 2013 summer associate at Honigman Miller Schwartz and Cohn LLP.

6003_195534827265243_1343698051_n

The ease with which today’s generation can pass along messages worldwide is staggering.  A single publication on a blog or website can instantaneously be replicated and disseminated to a limitless audience.  But does a re-post of an original article constitute a “new” publication?  In jurisdictions that follow the Restatement’s “Single-Publication Rule,” the answer is no.  This is important because claims for defamation are subject to applicable state statutes of limitations.  A New York court iterated the rule in Martin v. Daily News:

 [T]he single publication of a defamatory comment, regardless of the number of copies the comment appears in or the range of the publication’s distribution, constitutes only one publication and gives rise to only one cause of action . . . [h]owever, if a defamatory comment or writing is republished in a new format, the statute of limitations begins to run anew from the date of republication[, which must be] . . . a separate aggregate publication from the original, on a different occasion, which is not merely a delayed circulation of the original edition.

In that case, The Daily News published an article online in 2007 that allegedly defamed Larry D. Martin, a Justice of the New York State Supreme Court of Kings County.  However, the company thereafter updated its content management system, requiring it to cut and paste the previous article and repost it in 2010.  The plaintiff brought suit, alleging that restoring the article without correcting the defamatory statements constituted an actionable “republication.”  The defendant argued that the action was barred by the one-year statute of limitations, given that the original posting occurred in 2007.  The plaintiff emphasized that the 2010 version included “share buttons,” allowing it to be circulated exponentially.  Although social media share buttons provide a new means of disseminating a preexisting article, the court held that the addition of these buttons did not give rise to a republication, reasoning that whether the article is “shared” on social media “depends not on [The Daily News’s] actions, but rather those of third-parties.”  Thus, the court dismissed action as barred by the statute of limitations.

Occasionally, the original author does not intend to publish his statements on the Internet.  What then?  In Geraci v. Probst (N.Y. 2010), New York’s highest court addressed whether a letter sent from one business partner to another, which was subsequently published in Newsday, could give rise to liability on the part of the original sender.  The court said no.  In doing so, it declined to follow the “reasonable foreseeability” approach of liability:

“[A]bsent a showing that [defendant] approved or participated in some other manner in the activities of the third-party republisher, there is no basis for allowing the jury to consider the article containing the republished statement as a measure of plaintiff’s damages attributable to [the sender]” (internal citations omitted) (emphasis added).

To be sure, these questions will only get thornier as digital publishing platforms get more diverse.

About Brian Wassom:
All Posts by Brian Wassom | Share By Email | Brian Wassom on Google+
  • Bernie Nyman

    Thank you for that post. England and Wales have finally adopted a single publication rule in the Defamation Act 2013, but it is not yet in force – hopefully it will be in force by the end of 2013. Hopefully this provision will also be extended to the rest of the UK.