A recent New Jersey Supreme Court opinion held that the single publication rule applies to internet articles and that the one-year statute of limitations to sue over a defamatory internet article may restart if the original version has been substantially modified.
In Petro-Lubricant Testing Laboratories, Inc. v. Asher Adelman, d/b/a/ eBossWatch.com, Docket No. 078597 (N.J. May 7, 2018), the New Jersey Supreme Court addressed both the single publication rule and the fair report privilege in the context of an allegedly defamatory website article. Plaintiffs Petro–Lubricant Testing Laboratories, Inc. and its chief executive officer and co-owner, John Wintermute (collectively “Wintermute”), filed an action against defendant Asher Adelman (“Adelman”) alleging defamation per se, defamation, false light publicity, and intentional infliction of emotional distress. Adelman operated a website that published a list of “America's Worst Bosses.” The website posted an article recounting allegations in a civil complaint filed against Wintermute which alleged Wintermute engaged in highly offensive workplace conduct. After Wintermute complained about the article’s accuracy, Adelman modified the article to address some of Wintermute’s complaints. Wintermute, however, was not satisfied with the revision and filed a lawsuit within one year of the modified article's publication but outside the statute of limitations period for the original article.
Adelman moved for summary judgment on statute of limitations grounds. The trial court denied summary judgment by holding that the single publication rule did not apply because the changes made to the original article constituted a second publication. The Appellate Division reversed the trial court and held that because the minor modifications to the second article did not transform the article into a second publication, summary judgment should be granted on statute of limitation grounds.
In reversing the Appellate Division, the New Jersey Supreme Court concluded that “if a material and substantive change is made to the article's defamatory content, then the modified article will constitute a republication, restarting the statute of limitations.” The Court found that most of the changes to the article in question were minor and not substantive. However, it could not make a similar finding regarding the modified article's allegations that Wintermute expressed animus toward specific groups based on religion, ethnicity, and sexual orientation. The Court noted that the original article stated that Wintermute allegedly forced workers to listen to and read white supremacist materials, while the modified article indicated that Wintermute “allegedly regularly subjected his employees to ‘anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants.” The Court found those changes to the article had been material, or, at minimum, that there were genuine issues of facts regarding whether the modification was material.
Notwithstanding its conclusion that the single publication rule did not apply in this instance, the Court still affirmed summary judgment in favor of Adelman under the fair report privilege. The fair report privilege extends to a full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding, including a civil complaint, regardless of the truth or falsity of the initial allegations. The Court held that the fair report privileged applied even though the revised article did not report that the lawsuit had been settled. The Court reasoned that, since the terms of the settlement were confidential, it was impossible to determine if the settlement constituted a judgment on the merits.
The main takeaway here is that given the relative ease with which online publications can be edited and changed, defamation claims stemming from such online publications will be examined for both material and substantive changes in content when such publications are reviewed for purposes of the single publication rule.