The “Single Publication Rule” in the Internet Age, and the “Fair Report” Privilege

Petro-Lubricant Testing Laboratories, Inc. v. Adelman, ___ N.J. ___ (2018).  This defamation case, which involves an internet article about an employment discrimination lawsuit that was thereafter reprinted in somewhat different form, has pinged and ponged in different directions at each court level that it reached.  The key concepts involved are the “single publication rule,”under which an action for defamation arises at the time of the first publication of an alleged libel, thereby triggering the one-year statute of limitations, no matter how many copies of the publication are distributed or sold, and the “fair report” privilege, which “protects the publication of defamatory matters that appear in a report of official action or proceeding.”

On cross-motions for summary judgment, the Law Division granted summary judgment for the defense based on the fair report privilege.  That court determined that the single publication rule did not apply because the article was later reprinted with some changes.

In 2016, the Appellate Division issued its opinion in this case, which was reported at 447 N.J. Super. 391 (App. Div. 2016).  As discussed here, that court affirmed the Law Division’s result, but not its reasoning.  The Appellate Division found that the single publication rule applied and defeated the case.  The panel did not reach the fair report privilege issue.

On further review, the Supreme Court too affirmed the defense win, but not for the reasons that the Appellate Division gave.  Speaking through Justice Albin, the Court held that there were factual issues as to whether the changes to the article were sufficient to overcome the single publication rule, and that the Appellate Division had erred in relying on that rule.  But Justice Albin concluded that the fair report privilege applied, as the Law Division had held, and that the case was properly dismissed on that basis.

In a relatively unusual occurrence for the Court, three Justices filed a concurring opinion.  Writing for himself, Chief Justice Rabner, and Justice Timpone, Justice Solomon concluded, as a matter of law, that the new version of the article did not constitute a republication, so that the single publication rule properly applied here.  He found that any changes to the article were non-substantive and should not have prevented application of the single publication rule.

As is true of most Supreme Court opinions, this one contains virtually all that anyone handling matters in this area would need to know about the relevant law and policy going forward.  It is well worth careful study.

One Response to “The “Single Publication Rule” in the Internet Age, and the “Fair Report” Privilege”

  1. Stella Goyo-Shields says:

    As one of the plaintiff’s in the case, it is my opinion that failure to report on the known status of the case leaves the reader with a misleading impression and therefore the Fair Report Privilege should not be applied to the article. A settlement does not connote that there has been an admission of guilt. Rather, there are many reasons to settle any litigation, including, what many insurance companies do regularly – weigh the costs of litigation against the cost of the settlement. Failing to indicate that the settlement occurred implies that the litigation is on-going and a jury could still conclude that the allegations in the complaint are true; whereas, noting in the article that a settlement has been reached and case dismissed shows that no findings will ever be made. In fact, the original trial judge, Judge McGovern, reached this conclusion and initially ruled in favor of Petro. Regardless of whether reference to the settlement itself should render the article not a full fair and accurate accounting, we believe the Supreme Court was incorrect because it ignored Plaintiff’s evidence showing the report was not full, fair, and accurate. Among other things, there was evidence that the Ebosswatch post falsely accuses John Wintermute of “telling employees to lie to investigators” which is not an allegation contained in the complaint on which Asher Adelman was reporting.

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