In Larue v. Brown, the Arizona Court of Appeals recently issued its first opinion applying Arizona’s statutory single publication rule, an adoption of the Uniform Single Publication Act, to Internet defamation.
The court confirmed that the statute of limitations for online defamation begins 1. when a defamatory article is first published and that modifying the story, for example, by placing a substantive comment beneath it, is a “republication.” This republication creates a separate cause of action with a separate statute of limitations.
The defendants in Larue were a recently divorced father and his new wife. In November 2008, the new wife authored two Internet posts accusing the father’s ex-wife of complicity in child abuse. She also accused the ex-wife’s boyfriend of abuse and molestation. Several months later, the defendants used a comment section to publish additional information about the alleged abuse.
In December 2009, more than a year after the first publication of the posts, the ex-wife and her boyfriend sued for defamation. The defendants argued that the claim was time-barred by a one -ear statute of limitations.2 The trial court rejected the statute of limitations defense and entered judgment against the defendants, and the defendants appealed.
The court of appeals affirmed based on a republication exception to the single publication rule. The single publication rule provides that any single publication, exhibition or utterance gives rise to only a single cause of action with a single statute of limitations running from the date of first publication.3
The rule protects defendants who engage in mass communications, such as the media, from potentially limitless lawsuits based on a single communication. It also ensures the efficacy of the statute of limitations by preventing every sale of an old book or newspaper from renewing it.
The court reasoned that online content has potentially global reach and may always be on the Internet. So, the policy underlying the single publication rule demands that it apply online. And the uniform view of other jurisdictions was that the Uniform Single Publication Act applies to Internet articles.
The court also recognized that republication, an established exception to the single publication rule, applies to Internet defamation. Traditionally, if an author or editor published a new edition of a defamatory book, newspaper or magazine article, the new edition was a new publication.
This new publication created a new cause of action, even for defamatory statements that had been previously published. And the new cause of action had a new statute of limitations, which ran from the first publication of the new edition.
Applying this rule to defamatory Internet content, the court held that an Internet user who substantively modifies an Internet post — by amending or supplementing it or by directing it to a new audience — has republished it as a new edition.
As with print material, this new edition creates a new cause of action with a new statute of limitations. Thus, an author’s post in an online comment section, which provides additional information about the original article, is a republication. Similarly, a website owner who supplements original content with new headlines and articles related to the same topic has republished.
Larue was a clear first step in the application of the single publication rule to Internet content because of the relatively simple analogy between online articles and those in books, newspapers or magazines. The result of this analogy is consistent with the Uniform Single Publication Act’s underlying policy of consolidating litigation and enforcing the statute of limitations.
The next steps — online audio and video content — are less clear. If analogy drives the result, audio or video content may be treated like a radio or television broadcast. Every separate broadcast of a radio or television program may be a separate publication giving rise to a separate cause of action, even if the broadcaster simply rebroadcasts a program with no changes.4
If a future court holds that every YouTube view or podcast download is a new broadcast, then Internet audio and video content will experience a serious disadvantage compared to text-based articles.
Of course, this result would lead to the exact multiplicity of suits and uncertainty regarding the statute of limitations that the single publication rule is designed to prevent. Recognizing this, some courts may embrace a more policy-oriented approach to the application of the single publication rule to online audio and video content, holding that such content is rebroadcast only when substantively modified. This result would create parity among text, audio and video content on the web.
Ultimately, the Uniform Single Publication Act should be updated with explicit provisions related to Internet content. Until then, courts will discover the metes and bounds of the single publication rule through the common law process, and Internet users must remain vigilant to stay abreast of this evolving area of cyber law.
Samuel Doncaster is a senior litigator at Rose Law Group PC. He regularly litigates online defamation, electronic commerce, and cyber law. To further discuss online defamation or any cyber law matter, Doncaster may be reached at sdoncaster@roselawgroup.com, or (480) 291-0747.
Footnotes
1. No. 1 CA–CV 13–0138, op. (Ariz. Ct. App. August 19, 2014).
2. See, A.R.S. § 12-541(1).
3. See, A.R.S. § 12-651(A).
4. Christoff v. Nestle USA, Inc., 213 P.3d 132, 142 (Cal. 2009) (Werdegar, J., concurring) (collecting cases showing a jurisdictional conflict of this issue and concluding that treating each broadcast as a republication “is more consistent with our statutory language.”)
