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Online Defamation - Republication - Internet Library of Law and Court Decisions - Updated May 12, 2008

Reversing the Court of Appeals, the California Supreme Court holds that Section 230 of the Communications Decency Act ("CDA") immunizes defendant Ilena Rosenthal ("Rosenthal") from defamation claims arising out of her republication in two online newsgroups of an allegedly defamatory article authored by a third party.  In reaching this result, the California Supreme Court rejected the Court of Appeals' attempts to limit the immunity afforded by Section 230(c)(1) of the CDA to publishers, while leaving exposed to defamation claims "distributors" of defamatory statements who have notice of the defamatory nature of the statements they distribute.  The Supreme Court held that such "distributors," commonly know as "secondary publishers," are entitled to the same broad immunity afforded publishers under the CDA.  As explained by the Fourth Circuit in Zeran v. AOL, cited with approval by the California Supreme Court, the CDA "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third party user of the service" except claims such as those arising under the Intellectual Property laws, specifically exempted by the statute.

The Supreme Court also held that the broad immunity afforded under the statute to the providers of interactive computer services extended by operation of the statute's express language to "users" of such services.  "Users" protected by the CDA included those who use an interactive computer service to access the Internet and thereby to post or republish on the Internet a defamatory statement authored by a third party.  As stated by the Court, "by declaring that no 'user' may be treated as a 'publisher' of third party content, Congress has comprehensively immunized republication by individual Internet users."

Rejecting Zeran v. America Online, (4th Cir. 1997) and its progeny, an intermediate California Appellate court holds that the Communications Decency Act ("CDA") does not immunize a user of interactive computer services from a defamation claim arising out of her republication of statements authored by a third party, when the user knew or had reason to know of the falsity of those statements.  As a result, the Appellate Court reversed to much of the decision of the trial court below which had dismissed a defamation claim brought against defendant Ilena Rosenthal as a result of her republication in Usenet postings of a statement authored by a third party (defendant Timothy Bolen) which accused plaintiff Polevoy of criminal conduct.

The trial court had also rested its dismissal under California's Anti-SLAPP statute of plaintiffs' defamation claims on its determination that Polevoy lacked the requisite probability of success because, as a public figure, he could not prove that defendant Rosenthal acted with 'malice' when republishing Bolen's statements.  The Appellate court rejected this determination, holding that plaintiff may be able to establish that Rosenthal acted with the required malice, and therefore could proceed, notwithstanding Rosenthal's allegation that she had checked the veracity of the statements she was republishing with the alleged victim.  The Appellate Court held that such was insufficient to require dismissal of plaintiff's complaint, because of the alleged bias of both the victim and the original author of the posting against the plaintiff.

The Appellate Court did affirm the lower court's dismissal of defamation claims advanced by plaintiff Barrett, because the statements at issue were non-actionable opinion, as well as the trial court's decision to award Rosenthal attorney's fees expended in pursuing her Anti-SLAPP motion to dismiss (though reducing the recoverable amounts to reflect the reversal of that court's decision as to the claims asserted by Polevoy).

This decision, if followed, could have important ramifications for internet service providers and others who regularly repost publications authored by third parties without reviewing their content.  Under the court's ruling, service providers can be liable for defamation as a result of their republication of such statements if they know or have reason to know of the falsity of those statements.  According to the court "distributor liability would [generally] not require a service provider to review communications in advance of posting them but only to act reasonably after being put on notice that the communication is defamatory."  As a result, once the service provider receives notice (from the allegedly defamed individual) of falsity, it must either undertake adequate steps to ascertain the veracity of the statement, remove it, or face potential liability.  This creates tremendous uncertainty as the court did not specify what such adequate steps would be.  Indeed, as noted above, in the case at bar, where plaintiff alleged he was defamed by a statement that he had engaged in criminal conduct, the court held that contacting the victim was not sufficient as a matter of law to warrant dismissal of plaintiff's suit because of the victim's purported bias against plaintiff Polevoy.  Subsequent developments in this case should be watched closely by those interested in this field.

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.

Court holds that the statute of limitations bars plaintiffs from proceeding with libel claims arising out of allegedly defamatory statements posted on the Internet over one year prior to the commencement of plaintiff’s libel action.  Under the single publication rule, the statute of limitations begins to run from the date the defamatory statement is first posted on the Internet.  As that occurred over one year prior to the commencement of this litigation, the libel claims arising therefrom were dismissed.

In reaching this result, the Court held that posting links on a website to allegedly defamatory statements, or sending such links in an email, does not constitute a republication of the defamatory statements that gives rise to a separate defamation claim, or commence anew the statute of limitations.

The Court held that such a republication may occur when the header information on the webpage containing the allegedly defamatory statement is changed.  Here, however, that did not save plaintiffs’ libel claim from dismissal, because such republication occurred over one year prior to the commencement of this action.

Finally, the Court permitted plaintiffs to proceed with trade libel claims arising out of the publication of the statements at issue.  The Court find that plaintiffs had submitted sufficient evidence that the publication of such statements had caused it injury to survive defendants’ motion for summary judgment.

Quick Hits

Court holds that single publication rule applies to internet publications.  “[W]e adopt what we consider the majority position and apply the single publication rule to Internet publications.”  As a result, the Court affirms the lower court’s dismissal of plaintiffs’ defamation claim, because it was commenced more than one year after the allegedly defamatory report at issue – a governmental investigative report into the State’s Societies for the Prevention of Cruelty to Animals – was first distributed to various state governmental entities and made available for viewing on a governmental website.

In reaching this result, the Court rejected plaintiffs’ claims that the report was republished – causing the statute of limitations to run anew – by various changes made to the governmental website after the date of the report’s initial publication.  These changes included moving the location of, and adding a link on, the site’s navigation bar to “investigative reports”, which took users to the report at issue, and posting a press release on the website which directly referenced, and invited users to review, the report.   Such changes, “were merely technical changes to the website” that “altered the means by which website visitors could access the report, but … in no way altered the substance or form of the report” and thus, held the Court, did not constitute a republication thereof.  “[T]o treat the changes as republications would be inappropriate and defeat the beneficial purposes of the single publication rule.” 

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Court holds that adding additional allegedly defamatory material to a preexisting website constituted republication of the website that started anew the running of the statute of limitations for libel claims arising out of the statements contained therein.  The Court accordingly affirmed so much of the lower court’s decision which denied the Davises’ motion to dismiss Frank Mitan’s defamation claim on the ground that it was barred by the applicable one-year statute of limitations, as the instant lawsuit was commenced within one year from such republication.  In reaching this result, the court held that the single publication rule is applicable to internet publications – in this case a website critical of the Mitans.  In its decision the Court cogently stated the applicable rules of both single publication and republication.  Said the Court:

The single publication rule holds that any form of mass communication or aggregate publication – such as the publication of an edition of a book or a periodical, or the broadcast of a single radio or television program – is a single communication and can give rise to only one action for libel.  The rule applies only to those cases where communication is simultaneously available to multiple persons.  Its purposes are to prevent a 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 communications of ideas.  Under the single publication rule, the statute of limitations runs as soon as the communication enters the stream of commerce. 

An exception to the single publication rule is the doctrine of republication.  Republishing material – including publishing a second edition or a book or periodical, editing and republishing defamatory material, or placing it in a new form – resets the statute of limitations.  This exception provides the plaintiff with 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.  The narrow question in this case is whether posting new information to a defamatory website resets the statute of limitations under the republication doctrine.  As the Supreme Court of Kentucky has not spoken on this issue, the court relies on persuasive authority from other jurisdictions.

The mere act of editing a website to add unrelated content does not constitute republication of unrelated defamatory material that is posted on the same website.  Similarly, mere technical changes to a website such as changing the way an item of information is accessed is not republication.  …  In contrast, where substantive material is added to a website, and that material is related to defamatory material that is already posted, a republication has occurred.  To hold otherwise would give a publisher carte blance to continue to publish defamatory material on the Internet after the statute of limitations has run in the first instance.

In this case the Bankruptcy Court found that the new material on the
Davises’ website contained substantive information related to Kenneth, and by reference the Mitan family.  Having found these necessary facts, the Bankruptcy Court correctly analyzed Mitan, Firth and Churchill and held that a republication had occurred which restated the statute of limitations.  As the adversary proceeding was filed within one year of the updates to the Davises’ website it was timely filed.

Finally, the Court remanded the case to the Bankruptcy court to reconsider the scope of the injunctive relief awarded.  The Davises’ website addressed not only Frank Mitan, but other Mitans as well.  The Bankruptcy court enjoined the Davises from further publication of their website in toto – including references both to Frank Mitan, which were found to be defamatory, as well as the other Mitans.  In light of the foregoing, the court remanded the case to the Bankruptcy Court for further consideration of the appropriate scope of relief.

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