Intellectual Property Law

The Single Publication Rule Applied to Internet Defamation

By Martha L. Arias

Certain traditional torts such as defamation are gaining significance in cyberspace. Internet defamation has risen and will continue rising as the Internet penetrates our lives. In the United States, for instance, there are numerous precedent decisions solving particular issues of defamation when this tort is applied to the cyber world. It is interesting to observe how the first Internet defamation cases have addressed those same basic principles that once traditional defamation cases addressed. The single publication rule is one of these basic principles, and this article briefly shows that most U.S. state courts favor its application to Internet defamation cases.

One of the most important elements of the defamation tort is that the defamatory statement must be libelous. When the publisher of the libelous matter makes it available to its intended audience, the tort is completed (provided that the other elements, not a subject of this article, are met).  Publication is complete on the last day of the mass distribution of printed copies. Williamson v. New Times, Inc., 980 S.W.2d 706, 710 (Tex. App.--Fort Worth 1998). The statute of limitation precludes victims of defamatory statements to file lawsuits after the statute of limitation expires (usually 1-2 years).  For purposes of the statute of limitations, the period starts to run when the publication is complete. This is commonly known as the ?single publication rule.? The purpose of this rule is to prevent stale and repetitive claims against publishers.  See, Holloway v. Butler, 662 S.W.2d 688, 692 (Tex. App.--Houston [14th Dist.] 1983). Separate printings of a libelous matter are considered subsequent publications.

Thus, the single publication rule is extremely important because it determines when a legal claim is within or out of the statute of limitation period.  Whether the single publication rule applies to Internet defamation cases is still a controversy.  Some argue this rule should apply, while others claim it should not apply to Internet cases.  Some supporters, for instance, argue that application of the single publication rule to Internet defamation may create abuse, but support its application when the website is truly available to the public.  See, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. REV. 895, 913-14 (2001).  Others claim that the single publication rule should not apply to Internet defamation.  See, Internet Publications and Defamation: Why the Single Publication Rule Should Not Apply, 32 GOLDEN GATE U. L. REV. 325, 332-37 (2002). Among the ones opposing its application, we find the ones that hold that Internet defamation cases should consider the continuous publication rule. This means, that republication occurs when each viewer accesses a defamatory article from a website. 

New York is one of the few states that first applied the single publication rule to Internet publications.  In the case of Firth v. State, 98 N.Y.2d 365, 775 N.E.2d 463, 466, 747 N.Y.S.2d 69 (N.Y. 2002) (Firth, in short), the plaintiff sued the publisher of a report that was published on the Internet.  Plaintiff argued the continuous publication rule. He claimed that each day the report was available on the Internet, it constituted a new publication.  The court held that "a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants." The court also held that application of this rule to the Internet would cause an inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet.  Thus, the court held that the single publication rule applied to Internet publications. California, Georgia, New Jersey, and Texas have also applied the single publication rule to Internet publication and defamation. 

Therefore, it is likely that U.S. state courts will continue the trend and apply the single publication rule to Internet publications and defamation.  Public policy favors application of this rule for the benefit and the development of the Internet; choosing otherwise will create judicial chaos because it could bring massive lawsuits and endless litigation.   

Full post as published by IBLS Internet Law Blog on October 11, 2009 (boomark / email).