The “Single Publication Rule” and the One-Year Statute of Limitations Bar a Defamation Case

Petro-Lubricant Testing Laboratories, Inc. v. Adelman, 447 N.J. Super. 391 (App. Div. 2016).  The “single publication rule” gives a defamation plaintiff “a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold.”  Churchill v. State, 378 N.J. Super. 471 (App. Div. 2005), held that the single publication rule, which was originally designed to apply to newspapers or leaflets, extended to the internet.  That case also ruled that technical changes to the allegedly offending internet publication did not constitute a new publication that would extend the statute of limitations.  There is a strict one-year statute of limitations for defamation under N.J.S.A. 2A:14-3.

The attached decision by Judge Currier reprised these issues.  Defendant created a website called ebosswatch.com.  That site invited employees to rate their employers and workplaces so that potential job applicants could see what it was really like to work there.  On August 3, 2010, defendant published an article on that site that described the individual plaintiff here, John Wintermute, in extremely negative terms, including as a racist, a violent bully, and a womanizer.  Later in 2010, defendant posted another web page that listed Wintermute as among “America’s Worst Bosses 2010” and contained a link to the prior article.

In December 2011, defendant reprinted the original article.  But this version contained a different title, removed a picture of the plaintiff laboratory that had accompanied the earlier article, and change the wording of the article’s text in certain ways.

In June 2012, plaintiffs sued defendant for defamation and related theories, citing both the 2010 and the 2011 postings.  Defendant moved for summary judgment, relying on the one-year statute of limitations.  The Law Division granted summary judgment as to the 2010 statements, but denied it as to the 2011 posting.

At the close of discovery, both sides moved for summary judgment.  Defendant also sought leave to amend his answer to assert a counterclaim for retaliation under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12(d) (“NJLAD”).  The Law Division granted defendant’s motion for summary judgment and denied that of plaintiffs, but did not accept defendant’s limitations argument.  Instead, the court relied on different grounds.  The court also denied defendant’s motion to amend his answer, on mootness grounds.

Both sides appealed.  Applying the same standard of review as did the Law Division, the Appellate Division affirmed.

Judge Currier discussed the single publication rule and Churchill.  She then analyzed the two articles to see whether they differed sufficiently to defeat the statute of limitations argument.  She found that the differences were “immaterial,” so that the statute did not start to run again when the 2011 post went up.  “Web postings are available for an indefinite period of time.  If immaterial changes to an Internet post were to result in a retriggering of the statute of limitations on each occasion, the legislative purpose of favoring a short statute of limitations would be defeated.”  Thus, only “material” and “substantial” changes could start the statute anew.

Moreover, the language of the 2011 article was intended to lessen the “sting” of the 2010 posts.  “[A] softening of prior material in a subsequent posting should not result in the commencement of a new statute of limitations.”  Thus, the 2011 posting was not a republication but instead was covered by the single publication rule.  The suit was time-barred.

Judge Currier also made short work of defendant’s purported NJLAD retaliation claim.  Defendant lacked standing to bring that claim.  Defendant was not plaintiffs’ employee, and there was no evidence that he had any sufficient relationship with an employee of plaintiffs’ to afford standing under the NJLAD.  The panel disagreed with the Law Division’s basis for denying defendant leave to amend (mootness), but affirmed the result on standing grounds.

This case featured a visitor well-known to those who follow legal blogs.  Eugene Volokh of The Volokh Conspiracy argued the appeal for an amicus curiae who successfully argued that the “minor changes” in the 2011 article did not start the statute of limitations again.

 

 

 

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  1. […] Testing Laboratories, Inc. v. Adelman, 447 N.J. Super. 391 (App. Div. 2016), discussed here.  The question presented, as phrased by the Supreme Court Clerk’s Office, is “In this […]

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