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Firth v. The State of New York

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.

George Firth was employed by the New York State Department of Environmental Conservation ("DEC") as its Director of the Division of Law Enforcement. In May of 1992, the New York State Office of the Inspector General undertook an investigation of certain activities of the DEC. As a result of this investigation, on December 16, 1996 the Inspector General issued a report at a press conference entitled "the Best Bang for Their Buck" which, according to the Court, was "highly critical of [Firth's] management style and procurement of weapons." On the same date, the report was published on the Internet, where it was maintained continuously thereafter in unaltered fashion.

On March 3, 1997, Firth sent a notice to the Attorney General setting forth his intention to file a claim alleging, inter alia, that the defendant, by issuing the report, libeled, slandered and defamed him. Thereafter, on March 18, 1998, Firth commenced the instant action, in which he alleged, inter alia, that defendant defamed him by publishing the report at issue.

On defendant's motion, the court dismissed Firth's complaint on the ground that it was time barred. Under New York CPLR Section 215(3), "a cause of action for libel and slander must be commenced within one year of accrual." "The accrual of a defamation cause of action occurs upon the original publication of the offending material ... Publication occurs when the defamatory work first becomes generally available to the public or is placed on sale ...".

Firth did not commence his action within this time period, waiting instead for over one year to pass from the date on which the report was first published on the Internet to commence his action.

Firth argued that the continued availability of the report on the Internet constituted repeated republications thereof, which, in turn, started anew the applicable limitations period. The Court of Claims rejected this argument, holding that the publication of this report on the Internet was subject to the "single publication rule." Under this rule, the publication and subsequent maintenance of an article on the Internet gives rise to only one cause of action, for which the applicable statute of limitations commences on the date of first publication. Said the court:

Under the single publication rule, publication occurs at the time the defamatory article is made available to the public, and actual sales of the article (the equivalent of "hits" on the Internet) are unnecessary. ... This court sees no rational basis upon which to distinguish publication of a book or report through traditional printed media and publication through electronic means by making a copy of the text of the Report available via the Internet. While the act of making the document available constitutes a publication, in the absence of some alteration or change in form its continued availability on the Internet does not constitute a republication acting to being the Statute of Limitations anew each day.

If the article is altered or edited in a different matter, or if a defamatory article is placed in a new form (such as the first posting of a previous print-only publication on the Internet), a new statute of limitations period will begin to commence on the date of such republication. Said the court:

A republication will occur when the defamatory article is placed in a new form (paperback as opposed to hardcover) or edited in a different manner.

In reaching this conclusion, the court decided not to follow Swafford v. Memphis Individual Practice Assn., 1998 WL 281935 (Tenn. Crt. App., 1998). There, false information concerning the plaintiff doctor was submitted to the National Practitioner Data Bank, which in turn makes such data available to requesting health care entities. The Tennessee Court of Appeals held that a new cause of action arose for Statute of Limitations purposes each time the defamatory information maintained in the data base was accessed.

The Court also rejected Firth's argument that the continued maintenance of the report on the Internet constitutes a continuing wrong which serves to extend the statute of limitations until the wrong is concluded. The court held that the wrong the defendant allegedly committed consisted of the issuance of the report and its initial publication on the Internet. Any continuing damage arising from its continued maintenance on the Internet is simply a continuing effect of an earlier wrongful act.

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