Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, May 29, 2009

U. S. District Court For the Western District of Kentucky Holds That Single Publication Rule Applies To Internet In Defamation Cases

The U. S. District Court for the Western District of Kentucky has ruled that the single publication rule applies to the Internet. The plaintiff claimed that he had been defamed per se on the defendant's website. The defendant claimed that the plaintiff's action was barred by the statute of limitations.

The parties’ briefs raise several issues for consideration on this motion. First, this Court must identify the proper governing law that provides the appropriate statute of limitations. Plaintiff suggests that Alabama law, not Kentucky law, may govern this action. In a diversity action, the District Court applies the choice-of-law principles of the state in which the court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). This Court applies Kentucky choice of law principles. For tort actions, “any significant contact with Kentucky is sufficient to allow Kentucky law to be applied.” Monumental Life Ins. Co. v. Nationwide Retirement Solutions, Inc., 242 F.Supp.2d 438, 450 n.8 (W.D. Ky. 2003) (citing McGinnis v. Taitano, 3 F.Supp.2d 767, 769 (W.D. Ky. 1998)); see also Arnett v. Thompson, 433 S.W.2d 109, 113 (Ky. 1968). Plaintiff resides in Kentucky and seems to have discovered the allegedly defamatory statements in Kentucky. Any injury to Plaintiff's business reputation would be particularly experience in Kentucky, where he practices law. Such contacts are sufficient to apply the Kentucky limitation for filing an action for defamation.
Reasonable arguments exist to support using a discovery rule instead of the publication rule for determining when the statute of limitations accrues. The Sixth Circuit has previously addressed this argument considering Kentucky case law. Lashlee, 570 F.2d at 109. In Lashlee, the plaintiff argued that the statute of limitations in a libel action should “not accrue until he learned or should have learned of [the publication's] existence.” Id. The Sixth Circuit noted that although Kentucky recognizes the discovery rule in medical malpractice cases, no Kentucky precedent supported applying the discovery rule to defamation cases. Id. It found reason in Kentucky case law to suggest Kentucky would now apply the discovery rule to defamation actions. Further, Kentucky Courts make clear that the medical malpractice discovery rule represents an exception to the general rule. Id. (citing Caudill v. Arnett, 481 S.W.2d 668, 670 (Ky. 1972).
The statute of limitations for defamation is also governed by the single-publication rule. Under that rule, “any form of mass communication or aggregate publication … is a single communication and can give rise to only one action for libel.” In re Davis, 347 B.R. 607, 611 (W.D. Ky. 2006) (citing Mitan v. Davis, 243 F.Supp.2d 719, 722 (W.D. Ky. 2003); Restatement (Second) of Torts §577A)). The rule applies “where communication is simultaneously available to multiple persons.” Id. Under the single-publication rule, the statement is considered published and “the statute of limitations runs as soon as the communication enters the stream of commerce.” Id. (citing Mitan, 243 F.Supp.2d at 722).
Examples of mass communication include “the publication of an edition of a book or periodical, or the broadcast of a single radio or television program.” Id. Kentucky Courts have yet to extend the single-publication rule to Internet publications. Yet, the Western District of Kentucky has twice predicted that Kentucky courts would apply the single-publication rule to material published on the Internet. Id.; Mitan, 243 F.Supp.2d at 722-24. This Court agrees that Kentucky would apply the single-publication rule to the Internet. The purposes behind the single-publication rule align with the Internet as a means of communication. The desires to avoid “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 communication of ideas,” are all applicable to Internet publications.
The only variant seems to be the shear [sic] scale of the Internet: (1) its infinite ability to amass information and (2) its ability to reach an immense and diverse audience. True, public websites can more easily be accessed on not only the initial day of publication but on subsequent days as well. Yet this ease of accessibility cuts two ways: while a defamed person's injury is potentially greater, but it is also easier for that person to identify defamatory content.  Since no case law suggests that a defamed party must know of defamatory statements, or even subscribe to the publication in which they were defamed, no facts seem to persuasively distinguish the Internet from other publication sources. Accordingly, this Court will apply the single-publication rule to Internet publications.
Plaintiff did not discover the allegedly defamatory statements until July 2008. The Complaint also states that Plaintiff believes the statements were originally published some time in 2006. The complaint itself is not conclusive on the date of publication. In Defendant's affidavit, the Intelligence Report editor, Mark Potok (“Potok”), affirms that the alleged defamatory statements were first placed on Defendant's website on July 7, 2006 and the printed publication was mailed on August 14, 2006. He further affirms that the statements were not edited in any manner prior to their removal. Such evidence, if uncontroverted, establishes that the statute of limitations began running no later than August 14, 2006 and thus this action, having been filed in December 2008, was not timely filed.
Despite Plaintiff's exhortations, parties may only avoid the consequences of the statute in a limited number of ways. The doctrine of republication
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operates as an exception to the single-publication rule. In re Davis, 347 B.R. at 611. Republishing material in a new edition, editing and republishing it, or placing it in a new form resets the statute of limitations. Id. (citing Restatement (Second) of Torts §577(A) cmt. c, d). This exception protects Plaintiff by providing “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.” Id. (citing Firth v. New York, 98 N.Y.2d 365, 466 (N.Y. Ct. App. 2002). Determining instances of republication is fact intensive. See, e.g., Woodhull v. Meinel, 202 P.3d 126, 130 (N.M. App. Ct. 2008) (“[T]he point at which republication may occur depends heavily on the facts of each case.”). Generally, a website is republished when its content is “substantially modified.” Atkinson v. McLaughlin, 462 F.Supp.2d 1038, 1052 (D.N.D. 2006) (citing Churchill v. State, 876 A.2d 311, 317 (N.J. Super. 2005); Firth, 775 N.E.2d at 465); see also Am. Dental Ass'n v. Khorrami, 2003 WL 24141018, *5 (C.D. Cal. 2003) (noting that the single-publication rule applies to the Internet so long as the statement “is not substantially changed after its initial appearance.”).
Although avoidance is limited, the evidence is not conclusively in Defendant's favor at this time. Potok affirms that the statements were not edited in any manner between July of 2006 and July of 2008; however, other changes to the website's content may exist that would constitute substantial modification. Plaintiff has taken no discovery and, therefore, is unable to respond to Defendant's claim at this time. This Court will give the parties appropriate time to pursue discovery on the narrow issue of the statute of limitations.

The case is Salyer v. Southern Poverty Law Center, 37 Med.L.Rptr. 1693; 2009 U.S. Dist. LEXIS 35226;  2009 WL 1036907 (W.D.Ky.).

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