You Said WHAT?!? Wait…. How Long Ago?
Defamatory statements made online – – protected, or not protected? Do you have a right to sue? And if so, for how long?
Some new developments, particularly in regard to the statute of limitations (aka how long you have to bring a claim), should certainly be grabbing everyone’s attention right now…
The internet… It’s no secret that, while originating in good intention, it has also become a place of remarkably childish insults. Wherever there is a new thought, there is someone putting it down. Whenever a new suggestion is put forward, there are a hundred more people eager to poke holes in it. it’s an amazing place to share ideas and knowledge, communicate with loved ones around the world, catch up on missed news and events… and, unfortunately, to bad-mouth anyone and everyone with almost unlimited impunity.
For many, this is ‘the way things are’, mixing in a disgruntled sense of the 1st Amendment’s ‘freedom of speech’ and a lack of knowledge one’s rights. But while the 1st Amendment does provide some far-reaching protections – online and offline – it does not provide an unlimited right to spew defamatory statements.
A quick lesson on the law…
“Libel” is the making and distribution of a defamatory statement in writing. A defamatory statement is one “which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.” Offen v. Brenner, 402 Md. 191, 935 A.2d 719 (2007). “A statement that is merely unflattering, annoying, embarrassing, or that hurts only the plaintiff’s feeling is not considered defamatory.” R. Sack, Libel, Slander and Related Problems 45 (1980). Instead, a plaintiff has to show that “such words or conduct caused actual damage.” M & S Furniture v. De Bartolo Corp., 249 Md. 540, 544, 241 A.2d 126, 128 (1968). If the statement is true, however, then there is no libel.
Ok, now that you’ve been educated, let’s get to the meat of this story – – the statute of limitations.
Believe it or not, for many years, U.S. libel law has been tied up with a case from England circa 1849 – the Duke of Brunswick v. Harmer. In short, the rule from that case stated republication and dissemination of libel reset the statute of limitations (17 years later) and allowed the right to sue. If you’re thinking that’s a problem with the internet, then you’re right where you should be.
Just this year, however, the Court of Appeals for the Sixth Circuit, in Cincinnati, clarified what is, by and large, the new standard rule – the Single Publication Rule. That Rule states you have 1 year from the date of first publication to sue for libel. In other words, that a story or remark may have been republished elsewhere on the internet does not reset the statute of limitations (caveat: unless it’s so altered and different to constitute a new edition).
For publishers, this is great news, limiting their exposure to liability. But what about for you, the general internet public?
In the above-mentioned Sixth Circuit decision, Clark v. Viacom Int’l, former American Idol contestants sued for libelous statements made in online articles about their disqualification from the show, years after the articles were originally published. What is not clear from this decision – and what really should be at the forefront of these rulings – is how accessible the information must be to start the clock.
What we know is that, to be libelous, the online statement must cause actual damage to the individual due to reputation within their community. And, the individual has 1 year to sue from the date of that statement’s publication. But what is the community? How far-reaching must it go? In the infinite void of the internet, how is everyone supposed to find everything negative written about them? Does creating a Google Alert impose a burden of due diligence to investigate?
Many aspects of existing libel law can be carried over to the internet as another medium of publication. But when you really get down into the weeds of it, the internet is a place like no other. And when every day new improvements, search functionalities, and app extensions are being developed, the line is only becoming grayer.
Hopefully the next panel of judges to grapple with these questions know their way around technology…