When Do Changes to a Web Page Restart the Statute of Limitations?

The New Jersey Supreme Court answers.

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. 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?

In today's Petro-Lubricant Testing Laboratories, Inc. v. Adelman, the New Jersey Supreme Court offered some guidance on the question. (It also decided another important libel law issue, which I wrote about in this other post.) The principle (emphasis added):

[A] republication [that restarts the statute of limitations] occurs to an online publication if an author makes a material and substantive change to the original defamatory article.

A material change is one that relates to the defamatory content of the article at issue. See Black's Law Dictionary 638 (9th ed. 2009) (defining "material evidence" as "[e]vidence having some logical connection with the facts of consequence or the issues"). A material change is not a technical website modification or the posting on the website of another article with no connection to the original defamatory article.

A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article. See Webster's Third New International Dictionary 2280 (1981) (defining "substantive" as "having the character of an independent self-subsistent … thing: … not derivative or dependent"). A substantive change is not the mere reconfiguring of sentences or substitution of words that are not susceptible of conveying a new defamatory meaning to the article.

Under this formulation, an immaterial change would generally be nonsubstantive, so the key protection seems to appear in the last sentence: The statute of limitations is restarted only if something is added or changed that is "susceptible of conveying a new defamatory meaning." If allegations are softened or are just recast without being made worse, or if the changes are to material that wouldn't be defamatory, then the statute of limitations is not restarted.

And the court also offers some guideposts, given the facts of the case (citations, as usual, omitted):

Most of the changes to the article were minor in nature, such as replacing the article's title and the photograph at the top of the page. For instance, we see no substantive distinction between the article's description of [John] Wintermute as "a violent, raging drunk" in the original article, and as "a 'dangerous and violent alcoholic'" in the modified article. Those changes did not constitute a republication.

We come to a different conclusion, however, concerning the modified article's allegations that Wintermute expressed animus toward specific groups based on religion, ethnicity, and sexual orientation. The original article stated that "[Wintermute] also allegedly forced workers to listen to and read white supremacist materials." The modified article deleted that allegation and replaced it with the following: "John Wintermute also allegedly regularly subjected his employees to 'anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants.' "

The differences here are not technical or semantic. Both allegations—imputing to him white supremacist views and imputing to him a specific animus toward people based on their religious denominations and sexual orientations—clearly are defamatory by impugning Wintermute's character. But it is one thing to write that Wintermute "forced workers to listen and read white supremacist materials" and another to write that he "regularly subjected his employees" to rants against people of the Jewish and Catholic faiths, minorities, and gay people.

White supremacists do not necessarily have a monolithic and uniform belief structure. Although white supremacist groups share "the same general belief that Whites are superior to other races," they "also have major ideological differences." Although some white supremacists may hold "anti-religious" views, many others root their beliefs in their religious faith. While most white supremacists hold "anti-Jewish" beliefs, some do not. And though most white supremacists hold "anti-gay" beliefs, not all do. [Footnote: The concurrence refers to white supremacists and members of the Ku Klux Klan interchangeably. However, although all members of the Ku Klux Klan are white supremacists, not all white supremacists are members of the Ku Klux Klan.]

A reasonable person might not believe that all white supremacists hold anti-religious or anti-gay views. However, a Catholic, a Jew, a minority, and a gay person will almost certainly take offense when they are the specific target of a hateful rant. Reasonable people may disagree about the scope of a white supremacist's belief system; reasonable people will not disagree about the meaning of anti-Semitic, anti-Catholic, and anti-gay rants.

Clearly, the change to the article was material—relating to the article's defamatory content. At the very least, genuine issues of fact are in dispute about whether the modification to the original article was substantive—that is, whether it injected a wholly new defamatory statement into the article. The analysis is no different merely because the original article already had defamatory statements.

Three of the seven Justices, however, disagreed:

The majority's determination that "white supremacist materials" are distinct from materials that are "anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay" is contrary to common parlance. The modifications specifying the kinds of rants that plaintiffs' employees were subjected to do no more than further define "white supremacist" by setting forth its subsets. I do not agree with the majority that setting forth subsets of white supremacist views in Adelman's later blog post further defamed Wintermute.

Merriam-Webster's Dictionary defines a "white supremacist" as "a person who believes that the white race is inherently superior to other races and that white people should have control over people of other races." While this traditional definition has clear roots in our country's history, the ideological underpinnings of the white supremacist movement have "broadened." "[T]he [white supremacist] movement has broadened its focus to include other ethnic and religious groups, including Latinos, Asians, Middle Easterners, Muslims, and Sikhs. They have also targeted individuals of different sexual and gender identities, such as gay/lesbian and transgendered individuals." Although an individual may not subscribe to the same exact views about each group targeted by white supremacists, the person's identity and label as a white supremacist does not change. In short, the language in Adelman's modification contains a widely held, well-supported understanding of the term "white supremacy"—"anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay."

Nonetheless, the defendant prevailed because the new material was an fair and accurate report of a complaint filed in court, and thus was covered by New Jersey's "fair report" privilege.

Disclosure (as in the other post): My students Nate Barrett, Charles Linehan and Michael Smith and I filed a friend of the court brief in the case, via my Scott & Cyan Banister First Amendment Clinic, on behalf of the Reporters Committee for Freedom of the Press, and I also argued on behalf of amici in the Appellate Division and before the New Jersey Supreme Court; many thanks to our invaluable pro bono local counsel, Daniel Schmutter of Hartman & Winnicki.