• Single Publication Rule Applies to Defamation on the Internet
  • April 29, 2003 | Author: William F. Abrams
  • Law Firms: Pillsbury Winthrop Shaw Pittman LLP - Palo Alto Office ; Pillsbury Winthrop Shaw Pittman LLP - Office
  • Further shaping Internet law, the New York Court of Appeals recently issued an unanimous decision holding that the statute of limitations for an on-line defamation action runs from the first date the allegedly defamatory statements are posted online and is not re-triggered each time the posting is accessed. Firth v. State, No. 87, 2002 N.Y. LEXIS 1901 (N.Y. Ct. App. July 2, 2002). This ruling brings more certainty to the evolving field of Internet law by applying to online publications the traditional mass media communications single publication rule for defamation statute of limitations purposes.


    Statement Posted on Internet For Sustained Period


    At a press conference held on December 16, 1996, the Office of the Inspector General issued a report entitled "The Best Bang for Their Buck," which was critical of the managerial style and performance George Firth, then Director of the Division of Law Enforcement for the New York State Department of Environmental Conservation. Id. at *1-2. The full text of the report was posted on the Internet the same day, where it was continuously available thereafter and remained unaltered. The website was subsequently modified when an unrelated report from the Department of Motor Vehicles (DMV) was added. On March 18, 1998, over a year after the first release and posting of the report on the Internet, Firth filed a claim against the State of New York alleging defamation. Firth claimed that he was defamed at the time of the initial publication as well as through daily republication of the report on the Internet. Firth v. State, 184 Misc. 2d 105, 108 (N.Y. Ct. Cl. 2000).

    The New York Court of Claims granted the State's motion to dismiss the claim as time barred pursuant to the one year statute of limitations for defamation. Id. at 106, 115; see also N.Y. C.P.L.R. § 215. The court reasoned that the continued availability of the report on the Internet in unaltered form after first publication did not constitute republication and retrigger the statute of limitations each day. Thus, because Firth did not commence the suit within one year of the first publication, his defamation claim was time barred. The Appellate Division, Third Department, affirmed the decision. Firth v. State, 287 A.D.2d 771 (N.Y. App. Div. 2001). Two dissenting justices, however, concluded that it was unresolved whether there were modifications to the website which could support a finding of republication and overcome the application of the single publication rule in this case and an appeal to the New York Court of Appeals ensued.


    Single Publication Rule Applicable


    The Court of Appeals unanimously affirmed the dismissal of the suit as time barred. Firth,2002 N.Y. LEXIS 1901at *11-12. The court rejected Firth's argument that the single publication rule should not be applied to defamatory publications on the Internet. The single publication rule provides that "the publication of a defamatory statement in a single issue of a newspaper, or a single magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable statute of limitations runs from the date of publication." Gregoire v. G.P. Putnam & Sons, 28 N.Y. 119, 123 (1948). Firth noted that a website could be altered at any time and that each viewing of the report by a visitor to the website should be considered a republication. Firth argued that a multiple publication rule should give rise to a new cause of action for each communication of a defamatory statement. Id. at 5.

    The court reasoned that the policies that gave rise to the single publication rule for traditional media - ability of the plaintiff to aggregate damages in a single case and avoidance of a multiplicity of actions - suggested that the rule be applied to the Internet. Firth, 2002 N.Y. LEXIS 1901 at *6. The Court of Appeals found that communications over the Internet resemble traditional media on a greater scale, and that the single publication rule is similarly applicable to Internet communications. Id. at *8. Although not specifically cited by the court, this reasoning follows the court's ruling in Lunney v. Prodigy Services Co., 94 N.Y.2d 242, 249 (1999) in which the court applied traditional common law rules to a defamation claim arising from an e¿mail. There, the court found that e-mail is a hybrid of traditional telephone communication and regular postal service and, therefore, the established doctrines of defamation "accommodate the technology comfortably." Id.; seeBulletin No. 00¿02, Internet Service Provider Found Not Liable For Defamation, Jan. 14, 2000,


    Republication Not Found Where Website Modification Was Unrelated


    The Court of Appeals also rejected Firth's alternative argument that the State republished the allegedly defamatory report when it added an unrelated report on the DMV months later. Republication is an exception to the single publication rule. It occurs when the same defamatory statement is released in a separate publication on a different occasion which is intended to reach a new audience; for example, a later edition of a book or newspaper gives rise to a new cause of action. Id. at *9-10; see alsoRinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422 (1981). The court found that the subsequent addition of unrelated information to other pages on the website did not constitute republication. The court noted that websites are in a constant state of change and that applying the republication exception to the addition of unrelated information to the website would discourage the publication of information on the Internet.


    What Might Constitute Republication On The Internet?


    The law regarding republication on the Internet is evolving and the court did not explicitly address what will constitute a republication on the Internet. Each distinct publication, whether an initial publication or a republication of a libelous or slanderous statement may give rise to a defamation claim. Republication on the Internet may occur whenever allegedly defamatory text is edited and reposted. In Rinaldi, the court held that the publisher was not protected by the single publication rule when it released a paperback edition with surplus from the hardcover book printed over a year before the paperback's printing. Id. at 430. Although the publisher changed only the title page, cover page, publisher's name and Library of Congress number, the single publication rule did not apply, and a new statute of limitations period ran from the time of the paperback's publication. Id. In another instance, the inclusion of a previously published defamatory newspaper article in a subsequent book could constitute republication. If, in Firth's situation, the State had edited the report and reposted it on the website after the initial publication of the report, such conduct might constitute republication giving rise to a distinct claim. A new limitations period would begin from publication of the revised report. Posting the defamatory report to a separate website may also constitute republication. Because Firth did not preserve for appellate review the issue of whether posting a link to the report to a separate State website constituted republication, the court did not address that issue. Firth, 2002 N.Y. LEXIS 1901 at *12.

    The Firth decision follows Lunney in further clarifying defamation claims on the Internet by applying common law rules when applicable to cybercommunications. In today's online environment, Internet users very easily become publishers. This decision makes clear that in New York, the statute of limitations period will run from the initial publication on the Internet and not be re-triggered each time the allegedly defamatory statement is accessed or when the website is modified with unrelated information.