Libel suit must follow first online post in less than three years, Mass. court rules, applying U.S. norm

The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.

In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content.  The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff.  That amplification can count toward damages if the plaintiff prevails.  But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication.  The rule is said to serve interests of both judicial efficiency and fairness to defendants.

A newspaper is printed in 2013 on an 18th-century press
in Colonial Williamsburg. (Maggie McCain CC BY 2.0)

There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished.  The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download.  Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."

The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication.  In a decision today, the Massachusetts Appeals Court followed that norm.

The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence.  In each of two incidents, Wolsfelt was arrested.  After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report."  When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."

After the second incident in June 2012, the Times again published online a story that "largely tracked the police report."  When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months."  Charges were dismissed in 2012 and 2014, respectively.

In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment."  But the complaint was not filed until more than three years after the first article, its update, and the second article.  The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update.  The plaintiff said he learned about the articles only upon applying for employment in February 2013.

The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run.  Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods.  The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.

The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions.  The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.

However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States.  Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless.  Accordingly, the single publication rule has gained traction as a U.S. export.  The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013.  And the rule has been a point of proposal in Australia's ongoing defamation reform.  The single publication rule became law in New South Wales in July (Lexology).

The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020).  Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.