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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Statute of Limitations - Internet Library of Law and Court Decisions - Updated May 12, 2008

Claim No. 97999, 184 Misc. 2d 105, 706 N.Y.S 2d 835 (N.Y. Crt. of Claims, March 8, 2000), aff'd., 731 N.Y.S. 2d 244 (N.Y. App. Div., 2001), aff'd., -- N.Y. -- (N.Y., July 2, 2002)

Court of Claims holds the "single publication" rule applicable to the publication of a governmental report on the Internet. Under this rule, the Statute of Limitations on a claim for defamation arising out of such publication begins to run on the date the report first appears on the Internet; the continued maintenance of the report on the Internet in identical fashion does not constitute multiple or repeated republications which give rise to separate defamation claims, or a new limitations period.

Index No. 117595/05 (Sup. Ct. N.Y. Co., July 5, 2006)

Court holds that the 'single publication' rule applies to allegedly defamatory statements posted about plaintiff on a subscription web site accessible only by the site's members.  As those statements were posted over one year prior to the commencement of plaintiff's action charging defendant with defamation as a result of their publication, the Court held such claims barred by the applicable statute of limitations, and dismissed plaintiff's suit.

Case No. 02 CV 2258 JM (AJB) (S.D. Ca. March 7, 2007)

Court holds that the statute of limitations bars plaintiffs from proceeding with libel claims arising out of allegedly defamatory statements posted on the Internet over one year prior to the commencement of plaintiff’s libel action.  Under the single publication rule, the statute of limitations begins to run from the date the defamatory statement is first posted on the Internet.  As that occurred over one year prior to the commencement of this litigation, the libel claims arising therefrom were dismissed.

In reaching this result, the Court held that posting links on a website to allegedly defamatory statements, or sending such links in an email, does not constitute a republication of the defamatory statements that gives rise to a separate defamation claim, or commence anew the statute of limitations.

The Court held that such a republication may occur when the header information on the webpage containing the allegedly defamatory statement is changed.  Here, however, that did not save plaintiffs’ libel claim from dismissal, because such republication occurred over one year prior to the commencement of this action.

Finally, the Court permitted plaintiffs to proceed with trade libel claims arising out of the publication of the statements at issue.  The Court find that plaintiffs had submitted sufficient evidence that the publication of such statements had caused it injury to survive defendants’ motion for summary judgment.

Quick Hits

Churchill v State of New Jersey, Commission of Investigation
378 N.J. Super. 471, 876 A. 2d 311 (NJ Super. Ct. App. Div. 2005)

Court holds that single publication rule applies to internet publications.  “[W]e adopt what we consider the majority position and apply the single publication rule to Internet publications.”  As a result, the Court affirms the lower court’s dismissal of plaintiffs’ defamation claim, because it was commenced more than one year after the allegedly defamatory report at issue – a governmental investigative report into the State’s Societies for the Prevention of Cruelty to Animals – was first distributed to various state governmental entities and made available for viewing on a governmental website.

In reaching this result, the Court rejected plaintiffs’ claims that the report was republished – causing the statute of limitations to run anew – by various changes made to the governmental website after the date of the report’s initial publication.  These changes included moving the location of, and adding a link on, the site’s navigation bar to “investigative reports”, which took users to the report at issue, and posting a press release on the website which directly referenced, and invited users to review, the report.   Such changes, “were merely technical changes to the website” that “altered the means by which website visitors could access the report, but … in no way altered the substance or form of the report” and thus, held the Court, did not constitute a republication thereof.  “[T]o treat the changes as republications would be inappropriate and defeat the beneficial purposes of the single publication rule.” 

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Emory M. Davis, et al. v. Frank Mitan
Civil Action No. 06-88-C (W.D. Ky., August 14, 2006).

Court holds that adding additional allegedly defamatory material to a preexisting website constituted republication of the website that started anew the running of the statute of limitations for libel claims arising out of the statements contained therein.  The Court accordingly affirmed so much of the lower court’s decision which denied the Davises’ motion to dismiss Frank Mitan’s defamation claim on the ground that it was barred by the applicable one-year statute of limitations, as the instant lawsuit was commenced within one year from such republication.  In reaching this result, the court held that the single publication rule is applicable to internet publications – in this case a website critical of the Mitans.  In its decision the Court cogently stated the applicable rules of both single publication and republication.  Said the Court:

The single publication rule holds that any form of mass communication or aggregate publication – such as the publication of an edition of a book or a periodical, or the broadcast of a single radio or television program – is a single communication and can give rise to only one action for libel.  The rule applies only to those cases where communication is simultaneously available to multiple persons.  Its purposes are to prevent a multiplicity of actions, to protect the defendant from excessive liability based on a single publication run; to allow the plaintiff to recover all of his damages at once; and to reduce the chilling effect that the common law rule might have on the mass communications of ideas.  Under the single publication rule, the statute of limitations runs as soon as the communication enters the stream of commerce. 

An exception to the single publication rule is the doctrine of republication.  Republishing material – including publishing a second edition or a book or periodical, editing and republishing defamatory material, or placing it in a new form – resets the statute of limitations.  This exception provides the plaintiff with a remedy where the defendant edits and retransmits the defamatory material, or distributes the defamatory material for a second time with the goal of reaching a new audience.  The narrow question in this case is whether posting new information to a defamatory website resets the statute of limitations under the republication doctrine.  As the Supreme Court of Kentucky has not spoken on this issue, the court relies on persuasive authority from other jurisdictions.

The mere act of editing a website to add unrelated content does not constitute republication of unrelated defamatory material that is posted on the same website.  Similarly, mere technical changes to a website such as changing the way an item of information is accessed is not republication.  …  In contrast, where substantive material is added to a website, and that material is related to defamatory material that is already posted, a republication has occurred.  To hold otherwise would give a publisher carte blance to continue to publish defamatory material on the Internet after the statute of limitations has run in the first instance.

In this case the Bankruptcy Court found that the new material on the
Davises’ website contained substantive information related to Kenneth, and by reference the Mitan family.  Having found these necessary facts, the Bankruptcy Court correctly analyzed Mitan, Firth and Churchill and held that a republication had occurred which restated the statute of limitations.  As the adversary proceeding was filed within one year of the updates to the Davises’ website it was timely filed.


Finally, the Court remanded the case to the Bankruptcy court to reconsider the scope of the injunctive relief awarded.  The Davises’ website addressed not only Frank Mitan, but other Mitans as well.  The Bankruptcy court enjoined the Davises from further publication of their website in toto – including references both to Frank Mitan, which were found to be defamatory, as well as the other Mitans.  In light of the foregoing, the court remanded the case to the Bankruptcy Court for further consideration of the appropriate scope of relief.

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The Traditional Cat Association Inc. v. Laura Gilbreath, et al.
118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353, (Cal. Crt. App., May 6, 2004)

As cogently stated by the Court: "in California, the accrual of causes of action growing out of the publication of defamatory or other tortious statements is governed by the single-publication rule.  Under the rule, one cause of action will arise, and the statute of limitations will commence running, upon the first general publication or broadcast of a tortious statement, notwithstanding how many copies of the publication are distributed or how many people hear or see the broadcast.  Any subsequent republication or rebroadcast gives rise to a new single cause of action.

We find the single-publication rule applies to statements published on Internet web sites.  Because the statements which give rise to plaintiff's cause of action for defamation were posted on a Web site maintained by one of the defendants more than a year before plaintiffs' complaint was filed, the plaintiffs' defamation cause of action is barred by the applicable statute of limitations, Code of Civil Procedure section 340.  Accordingly, the trial court should have granted the defendants' motion to strike the defamation cause of action."

Here, the defendant submitted a declaration that he did not alter the web site on which the statements that gave rise to plaintiffs' defamation claim, which purported to describe a lawsuit between the parties in terms highly critical of plaintiffs, were posted on web, at any time after May 21, 2001.  As the lawsuit was commenced on May 22, 2002, the Court held it time barred by application of the single publication rule, and California's one year statute of limitations on defamation claims. 

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Robert Van Buskirk v. The New York Times, et al.
325 F.3d 87 (2d Cir. 2003)

Following the decision of the New York Court of Appeals in Firth v. New York, 747 N.Y.S.2d 69 (2002), the Second Circuit holds that the single publication rule applies to defamation claims arising out of internet publications.  As explained by the Court: "New York's single publication rule states that a defamation claim accrues at publication, defined as 'the earliest date on which the work was placed on sale or became generally available to the public.'  The rule implements a public policy of avoiding the exposure of publishers to 'a multiplicity of actions, leading to potential harassment and excessive liability, and draining of judicial resources,' as well as 'reducing the possiblity of hardship to plaintiffs by allowing the collection of all damages in one case commenced in a single jurisdiction.'

As a result, because plaintiff's defamation claim against defendant Plaster was commenced more than a year after Plaster's publication on the Internet of the letter out of which it arose, the Second Circuit held it time barred, and affirmed the dismissal of plaintiff's claim against Plaster. 

The balance of the Court's decision addresses plaintiff's libel claim agaiinst the New York Times, which published a revised version of Plaster's letter as an op-ed piece.  While we will not discuss this aspect of the court's decision here, the Second Circuit affirmed the dismissal of this claim as well, holding the statements in the article at issue were not susceptible to the defamatory meanings alleged in the complaint. 

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