Changing post in immaterial ways—or to soften its allegations—does not restart statute of limitations

|The Volokh Conspiracy |

Say you've put up a Web page that criticizes a plaintiff; he thinks it's libelous. Some time later, he demands that you take it down. You don't do that, but you do make some minor changes that, if anything, only soften the allegations.

Does your making the changes restart the statute of limitations? Or does the statute of limitations run from the day the article was originally published?

Yesterday's New Jersey appellate decision in Petro-Lubricant Testing Laboratories v. Adelman concludes that "minor changes" that are either "immaterial" or at most "lessened the 'sting' of the publication" do not restart the statute of limitations (which in many states is quite short, just a year). That's an important holding, and to my knowledge this is the first case to squarely render such a holding (though other cases have pointed in that direction).

I'm pleased to say that my students Nate Barrett, Charles Linehan and Michael Smith and I filed a friend of the court brief in the case on behalf of the Reporters Committee for Freedom of the Press (many thanks to our invaluable pro bono local counsel, Daniel Schmutter of Hartman & Winnicki), and I also argued on behalf of amici, alongside defendant's lawyer Garen Meguerian.

Here is an excerpt from the court opinion (some paragraph breaks added):

In this defamation case, we are asked to decide whether a second posting of an article on a website with minor changes from the original posting was sufficient to categorize it as a separate publication, and therefore subject to a new statute of limitations.

We find the minor changes between the two articles to be immaterial and not sufficient to render them two separate publications. In addition, to the extent that any of the changes could be regarded as material, on the whole they lessened the "sting" of the publication. Therefore, the single publication rule is applicable and the complaint was properly dismissed as untimely under the one-year statute of limitations….

The website eBossWatch.com was created by defendant Asher Adelman for people to rate their employers and bosses so that job seekers might search workplaces and "access inside information about what it's really like to work there." After viewing an article on the Courthouse News Service1 that detailed allegations of gender discrimination and a hostile workplace environment in a complaint filed by an employee against plaintiffs Petro-Lubricant Testing Laboratories, Inc. (PTL) and John Wintermute, defendant published an article on his website reporting on the same complaint.

The article, entitled "'Bizarre' and Hostile Work Environment Leads to Lawsuit," was posted on August 3, 2010. It repeated the allegations contained in the complaint which described Wintermute as a "violent bully, a racist, and a womanizer who regularly brought guns to the workplace." Allegations of Wintermute's explosive temper, his sexual affairs with female employees, and his retaliation by firing the employee when she refused to lie for the company in another employment-related lawsuit were also described.

In 2010, defendant also posted a webpage entitled "America's Worst Bosses 2010," a list that ranked bosses and named their employers. Wintermute was named in the list and a hyperlink led to the eBossWatch article.

In December 2011 [i.e., after the statute of limitations on the initial post had already run -EV], an attorney representing plaintiffs wrote to defendant stating:

It has recently come to our attention that you have published false and defamatory statements concerning our client in an article. This letter serves as your final notice to remove this article from your website or face liability under New Jersey law for defamation, defamation per se, and false light invasion of privacy.

The letter advised that defendant "may be held liable for significant monetary damages," and demanded defendant remove the article, related links, and metatags. The letter stated that the employee "was fired from Petro-Lubricant for reasons unrelated to anything contained in her complaint" and that her "retaliatory lawsuit containing these baseless allegations" had been settled.

Defendant responded to plaintiffs' counsel that the "article is clearly a reporting of the complaint that was filed by [the employee] against [plaintiffs]. [O]ur article contains only factual statements about the abovementioned complaint and its allegations." Defendant stated further that "to make it even more clear that our article is a factual reporting of the [employee's] complaint, we have made some minor changes to the wording and to the article's title." The email provided counsel with a link to the updated article published in December 2011. The article was also linked to the "America's Worst Bosses 2010" list. [Petro-Lubricant and Wintermute sued Adelman in June 2012. -EV] …

On appeal, plaintiffs argue that the December 2011 article is "a separate and distinct publication from the August 2010 post" and therefore, the complaint was timely filed within the one-year statute of limitations. Plaintiffs contend the single publication rule does not apply to the second posting as the December 2011 article contained significant changes in its content, substance, and form from the earlier post. Plaintiffs also argue that the judge erred in deeming the article privileged. In his cross-appeal, defendant contends the judge's dismissal of his retaliation counterclaim and discovery sanction motion was error.

Amicus curiae, the Reporters Committee for Freedom of the Press, asserts that the "minor changes" made in the December 2011 article did not broaden any of the claims or allegations set forth in the original posting, and therefore, under the single publication rule, the one-year statute of limitations applied and had expired prior to the filing of the complaint….

The single publication rule was applied traditionally to "mass publications under which a plaintiff alleging defamation has 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." … [We have] held the single publication rule applied to Internet publications….

[W]e turn to an analysis of the two articles. Both posts are constructed similarly, each containing six paragraphs. … [T]he title was changed between posts but the subject matter remained the same; both articles report on a hostile work environment lawsuit. Although the wording used in the first two paragraphs is slightly different, the substance remains the same. The fourth, fifth, and sixth paragraphs are unchanged.

We look then at the third paragraph in the articles. The August post reads:

[The employee] claims that John Wintermute is a violent bully, a racist, and a womanizer who regularly brought guns to the workplace and target practiced, hunted and gutted birds, which he then fed to his guard dogs, on company property. He also allegedly forced workers to listen to and read white supremacist materials, drank alcohol regularly throughout the workday, and was a violent, raging drunk.

The third paragraph of the December 2011 article states:

[the employee] claims that John Wintermute is a "dangerous and violent alcoholic" who allegedly regularly brought guns to the workplace and target practiced, hunted and gutted birds, which he then fed to his dogs, on company property. John Wintermute also allegedly regularly subjected his employees to "anti-religion, anti-minority, anti- Jewish, anti-catholic, anti-gay rants."

The only substantive difference in the actual text of these articles is the elimination of the reference to Wintermute requiring his employees to listen to and read white supremacist materials; the later post instead quotes the employee's allegations that Wintermute subjected his employees to "anti-religion, anti-minority, anti-Jewish, anti-catholic and anti-gay rants."

Communications posted on websites are viewed on a far wider scale than traditional mass media. 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 for defamation would be defeated. Therefore, the statute of limitations will only be triggered if a modification to an Internet post materially and substantially alters the content and substance of the article.

We note that the modifications in the second posting were intended by defendant to diminish the defamatory sting of the previously reported allegations after his receipt of plaintiffs' counsel's antagonistic correspondence. We find it a logical extension of our decision today to also conclude that a softening of prior material in a subsequent posting should not result in the commencement of a new statute of limitations. Therefore, if a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations.

We reject the argument that the second post was altered in substance or form from the earlier posting as the differences between the articles are immaterial. The allegedly defamatory information is the same in both articles. Paragraph three of the second posting was minimally altered to quote specific phrases contained in the complaint. The disseminated information stayed constant.

Therefore, we find the December 2011 article was not a republication and instead falls under the single publication rule. The one-year statute of limitations commenced with the posting of the original article in August 2010; therefore, the complaint filed in June 2012 is barred as untimely and defendants were entitled to summary judgment and a dismissal of plaintiffs' claims. As a result, we do not consider the remainder of plaintiffs' contentions.