Let the dead stay buried: online archiving does not bring "zombie" defamation claims back to life

Recently, a college editor in Massachusetts received a nightmarish letter from a law firm claiming that its client was defamed in an article posted to the student newspaper’s website.

In 1998.

Imagine trying to go back seventeen years to piece together the circumstances surrounding a news story, when memories have faded, notes have been discarded and recordings erased. Because such a burden would be unsustainable for publishers, every state has a statute of limitations for defamation claims that expires no longer than three years from the date that the statement is first published (and in many states, as little as one year). Once the statute has elapsed, even the best-founded libel claim cannot be resuscitated.

Those statutes of limitation were enacted in a simpler time of paper-and-ink publishing. How they apply to digitized archives is a question that the courts only recently have been forced to confront.

When news organizations began making online back-issues available for public viewing, two things happened. First, people began searching and finding their names in unflattering articles they believed (or at least hoped) were no longer readable beyond the basement stacks in the public library. Second, creative libel lawyers got the idea of end-running the statutory time-bar by arguing that making an article accessible online essentially stopped the clock — as if every day that a story remained on the Web was a new republication.

A recent federal court ruling out of Tennessee, however, reinforces the consensus that the “single publication rule” — the principle that the lawsuit clock begins ticking with the first date that an article is made available to the public — applies on the Web page just as it does on the printed page.

In Clark v. Viacom International Inc., former “American Idol” contestants Corey Clark and Jaered Andrews sued the owners of MTV and VH1 over articles on the network’ websites discussing how Clark and Andrews were disqualified from the long-running prime-time talent show (each had an arrest record that came to light after they had advanced to elite rounds of the competition). Several of the posts made sarcastic references to the contestants’ backgrounds, including one which named a fictitious “Award for Past Indiscretions” after Clark (who is best remembered as the contestant who claimed he was clandestinely coached by — and romantically involved with — Idol judge Paula Abdul).

The articles were published between July 2011 and May 2012, which made the claims untimely under Tennessee’s one-year statute of limitations. But Clark and Andrews argued that the stories were “republished” every day that they remained viewable, noting that the websites continually refreshed the ads surrounding the articles. 

In a July 8 opinion written by Judge Richard Griffin, the Sixth Circuit rejected that claim:

Stale statements are not perpetually actionable under Tennessee defamation law solely because they continue to be available to the online public. … [T]he test of whether a statement has been republished is if the speaker has affirmatively reiterated it in an attempt to reach a new audience that the statement’s prior dissemination did not encompass. 

The court noted that at least three other federal circuits (the Third, Seventh and Ninth) have agreed that the “single publication rule” applies even when an article is continuously posted to the Web, and that no circuit has disagreed.

The Clark ruling is the most thorough examination so far of what does and does not equate to “republishing” an online story, so — even though the publishers won this time — the case is also useful as a caution to future publishers about the risk of reincarnating a dead libel claim.

According to the court, it is not a republication merely to (1) point readers to an old article by linking back to it in a new article, (2) add new content to the page surrounding the old article, or (3) change the functionality of the website or the URL of the article without actually altering the article’s text.

And according to the court, here is what can be a republication that restarts the statute of limitations: making a “materially substantive change” to an already-posted article, especially if the change is intended to cause the article to reach a new-and-different audience. 

Intriguingly, the court raised, but did not decide, the question of whether merely making the identical article text available to a wider readership could qualify as a new publication that resets the defamation calendar — for example, dropping a paywall and making a formerly limited-access article available to the general public. (In a somewhat analogous case from the pre-digital era, a California court decided that reissuing a hardcover book in paperback was a new publication aimed at reaching a new audience, even though the allegedly defamatory passage was itself unchanged.)

If you have questions about the law of online publishing, the SPLC’s white paper, “Responding to Takedown Demands,” offers research about common scenarios that arise in operating news websites.