Administrative Law

Defamation and Oral History: Update

By Peter

Christmas came early in an important case in the California Supreme Court that this blog has been tracking.  In the case of Hebrew Academy of S.F. v. Goldman, the court reversed an earlier opinion concerning oral histories found in the Bancroft Library at UC-Berkeley.

Two issues were at play in the case.  The first concerned whether the admittedly limited distribution of copies of the oral histories in question was enough to activate California's "single publication" rule, which normally limits defamation actions to within the first year after initial publication.  The court ruled that the Bancroft did indeed "publish" the oral histories many years ago.  In addition, the court rejected the plaintiff's argument that the clock to file an action should only commence when  an alleged defamation is discovered.  Because the statute of limitations has expired, there is no need to determine whether the statements in the oral history were actually defamatory.

The decision is basically good news for libraries in California that might republish or distribute potentially defamatory material.  One year after publication, institutions can breathe easy, knowing that their risk has decreased.  This is the primary reasons that a coalition of library organizations and the Society of American Archivists filed an amicus brief in support of the defendants.  Furthermore, my employer (Cornell University) has included the decision in its defense of a million dollar defamation suit against it for digitizing a newspaper from the 1980s that allegedly contained defamatory material.   The new decision would seem to suggest that publication occurred in the 1980s, when the paper was first printed, and not in 2007, when the paper was scanned and added to Google.  The fact that the individual did not know at the time that the statements had been published is immaterial if the possibility exists that he or she could have learned of their existence.

On the flip side, the case does raise the possibility that for at least one year, oral history programs may have to take editorial responsibility for the statements that are included in oral histories.   Libraries with oral histories will have to take care that they do not unintentionally disseminate falsehoods even as they seek to present the unvarnished words of the interviewee.

Full post as published by LibraryLaw Blog on January 02, 2008 (boomark / email).