Imagine retweeting a comment or image that, unbeknownst to you at the time, defames another individual or business. Or, say you repeated a piece of gossip that you overheard at your office watercooler and knew to be factually untrue, in front of several friends. While you are not the original author or speaker of the defamatory statement in question, could you be held liable for its republication?
At Minc Law, we have filed hundreds of defamation lawsuits, represented thousands of defamation clients across the U.S. and globe, and authored nearly two dozen comprehensive state-specific defamation law guides, so we know the ins and outs of U.S. defamation law and what constitutes a defamatory publication or republication.
As a general rule, an individual who repeats or republishes defamation will be subject to the same liability as the publisher of the original defamatory material. However, this rule is not always cut and dry, and there are several exceptions and defenses that an individual who republishes defamation may rely on.
Below, we walk through in greater detail:
A defamatory statement is considered “published” when it is communicated either intentionally, with actual malice or reckless disregard, or negligently, to someone other than the person being defamed. The statement must also be reasonably understood by the recipient to be false. Publication, therefore, has two key requirements:
Below, we dive into these two key elements in greater detail.
The Publication is Communicated to a Third PartyA defamatory statement is published when it is made to at least one person who is not the subject of the statement in question. It is not necessary that the defamatory statement be communicated to multiple people.
Even if the statement is communicated to a single person other than the defamed party, the statement will be considered published. Restat. 2d of Torts § 577 cmt. B.
While defamatory statements are typically oral (slander) or written (libel) communications, they can also include body language and gestures. Restat. 2d of Torts § 577 cmt. A.
To illustrate, if the alleged defamer shouts a defamatory statement at a loud rock and roll concert, but no one actually hears it or can recall what was shouted, then there will be no defamatory publication.
By way of another example, if the defamer communicates a defamatory statement in a language that the third party does not understand, then there will be no legal publication, and thus, no liability for defamation. Restat. 2d of Torts § 577 cmt. D.
As a general rule, a plaintiff cannot succeed on a defamation claim if:
However, some states, such as California, Minnesota, and Kansas, recognize an exception to this rule – called the self-publication exception.
In those states, a plaintiff may succeed on a defamation claim if the defendant communicates a defamatory statement to the plaintiff, and the plaintiff is subsequently compelled to publish that statement. But one of the following two conditions must exist:
However, the self-publication exception is a minority approach and has been rejected by most states. See Cweklinsky v. Mobil Chem. Co., 267 Conn. 210 (2004); White v. Blue Cross & Blue Shield of Mass., 442 Mass. 64 (2004); Gore v. Health-Tex, Inc., 567 So. 2d 1307 (Ala. 1990).
Employment
An example of the self-publication exception commonly exists in the employment context. Say an employer fires an employee for allegedly stealing company money. Even though the allegation is false, the employee accepts the termination and seeks out a new job.
During the former employee’s new job interview, he is asked why he left his old job. He admits that his employer believed he stole company money. Despite the former employee’s denial of the allegation, the new employer refuses to hire him.
In this case, it is reasonably foreseeable that the former employee might divulge the reason for his firing.
Illiteracy
In Lyon v. Lash, 74 Kan. 745 (1906), the plaintiff’s niece sent a letter to the plaintiff’s mother that included allegedly libelous language accusing the plaintiff of preventing her (niece) from receiving a share of her deceased grandfather’s estate. Because the plaintiff’s mother was illiterate, the plaintiff read the letter out loud to her.
The court found that the plaintiff reading the letter aloud to her mother did not meet the publication requirement. This is because the plaintiff voluntarily disclosed the defamatory contents of the letter to her mother. Therefore, the niece could not be held liable for defamation.
Lyon established that while a defamer may still be considered a “publisher,” even if the target of the defamation was the actual party to communicate the statement in question, this will typically only apply when the plaintiff is unaware of the defamatory nature of the statement.
The general rule is that a person who repeats or republishes a defamatory statement is subject to the same liability as if he/she had originally published the statement. Restat. 2d Torts § 578. Republication liability does not require the publisher to be the author or creator of the original defamatory statement and a person cannot generally avoid liability for defamation merely because they repeated someone else’s words. See Theiss v. Scherer, 396 F.2d 646 (6th Cir. 1968).
Each time a (new) person publishes or communicates the original defamatory statement, this will constitute a republication. Restat. 2d Torts § 578 cmt. B.
To prove defamation liability for republication, a plaintiff must meet the same requirements as a traditional defamation claim. This requires that a plaintiff prove the following elements:
Republication by a defendant, after they have been notified of the potentially defamatory nature of the statements, may be treated as evidence of reckless disregard to establish fault. Nevada Indep. Broadcasting Corp. v. Allen, 664 P.2d 337 (Nev. 1983); Restat. 2d of Torts § 580A cmt. D.
The legal analysis of whether republication has taken place is fact-specific. However, the general rule is that a statement will be considered “republished” when it is republished in a different medium.
In Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012), the court held that a printed statement republished in something that was not part of the same “single integrated publication” constituted a republication. The court emphasized, “…a statement made in a daily newspaper is not republished when it is repeated in later editions of that day’s newspaper, but a statement made in a hardcover book is republished when it is repeated in a later paperback version of the book.”
But there are limits to republication liability. Applied to today’s social media defamation landscape, the court in Penrose Hill Ltd. v. Mabray, 2020 U.S. Dist. LEXIS 149286, *23 (N.D. Cal.) held that a tweet will constitute a republication when it includes some of the initially published defamatory statements. If the tweet merely links to the original content, without further comment or language, this will not constitute a republication.
There are several steps to establishing the liability of a publisher within the defamation context. One of the first integral steps is proving the intent of the publisher.
Recall that publication requires a person to publish a defamatory communication in an intentional, negligent, or reckless manner. If a reasonable person concludes that the defamer should have known the statement(s) they are communicating could be published to a third party, then the defamer is likely to be held liable for defamation. But if a reasonable person concludes that the defamer could not have reasonably anticipated that a third party would “receive” the defamatory statement, then there probably is no defamation liability.
The next step involves proving that the publisher knew, or should have known, that the information they published was defamatory.
Finally, a publisher could be held liable for defamation republication if they have the control to remove the defamatory content, but choose not to or ignore the request. This does not require the publisher to take extreme measures to remove the defamatory statement. But if the offending information can be easily taken down, then the publisher may have a legal duty to do so.
Defamation Law Tip: Defamation is like many other civil torts in that liability often boils down to whether the defendant acted reasonably when publishing the statement(s). If a defendant has knowledge, or reason to believe, the statement(s) in question is false, then they may be held liable for defamation. To put it another way, if the defendant knew better (acted with actual malice or reckless disregard) than to publish a particular statement, there is a good chance the defendant will be liable.
The major exception to the general rule of republication liability is the single publication rule. The single publication rule is both an exception and a time-limiting restriction placed on defamation plaintiffs, the statute of limitations, and their ability to initiate multiple defamation lawsuits for a single libelous publication.
For example, where a single issue of a newspaper or a single post on a website containing defamatory statements is released to, and read by, third parties, the defamatory statement will only be considered published once. This means that the plaintiff can only bring one libel claim based on that publication. Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119 (1948); Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40 (1921); Herron v. KING Broadcasting, Co., 109 Wn.2d 521 (1987); Firth v. State of New York, 98 NY2d 365 (2002)(applying the single publication rule to websites).
The single publication rule exists to prevent defamation plaintiffs from perpetually bringing defamation lawsuits against a defendant for future publications of the same defamatory content.
However, substantive changes to the defamatory content or publication will give rise to a new defamation claim. Small or irrelevant changes to the defamatory publication will not engender new claims for defamation and will not restart the statute of limitations.
As the single publication rule is a time-limiting restriction placed on a plaintiff’s ability to lodge defamation lawsuits, it is relevant to determining the statute of limitations of a defamation action.
The statute of limitations refers to the amount of time a potential plaintiff has to initiate a lawsuit. Barring several exceptions, courts will not generally allow individuals to bring a lawsuit after this limitation period has expired.
The statute of limitations “clock” for a defamation claim begins to run after the defamatory statement is first published. And this clock will reset after each republication of a defamatory statement.
Imagine a website republishes a defamatory statement on January 15 in a state where the statute of limitations for defamation is one year. Immediately after posting the statement, millions of people view the statement. The post stays up for months, and the plaintiff only first learns of the defamatory statement on March 15.
Because of the single publication rule, the plaintiff must file a defamation lawsuit before January 15th of the following year. If the plaintiff files suit in February of the following year, the libel lawsuit will fall outside of the one-year statute of limitations deadline.
The single publication rule may be subject to different exceptions in different states, particularly where the case involves an internet publication.
In the case of publication on a website, if the defamatory material is relocated to a second website, the relocation will constitute a republication of the defamatory material. See Rare1 Corp. v. Moshe Zwiebel Diamond Corp, 13 Misc. 3d 279, 282 (N.Y. Sup. Ct. 2006).
In Rivera v. NYP Holdings, Inc., 16 Misc. 3d 1121(A) (Sup. Ct. N.Y. CTY 2007), a New York court found that if a news article is published on a website and in a separate print edition, the statements contained therein are republished because online publications and print publications are designed to reach different audiences.
A California court in LegacyQuest v. Rosen, No. A129177, 2012 WL 267509, at *5 (Cal. Ct. App. Jan. 27, 2012) held that changes to the original defamatory material on a website may begin a new limitations period.
A news story that is retrieved via the internet from an electronic archive does not constitute republication. McCandliss v. Cox Enters., 265 Ga. App. 377 (2004).
In certain circumstances, the defamation statute of limitations begins to run when the defamation is discovered, rather than when it was initially published. Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 242 (Ariz. Ct. App. 1983).
Minc Defamation Law Tip: If you have discovered a defamatory statement, it is critical to act as quickly as possible. Never assume that you have plenty of time to bring your legal action. The single publication rule may lead to a shorter statute of limitations deadline than you realize. There is also the issue of lost evidence, especially when the alleged defamatory statement is published on the internet. You never know when a person will delete an online post, or a social media website will clear out old emails or purge data from their servers because of routine maintenance. This can mean important evidence in a defamation case is lost or becomes harder to obtain.
There are several republication defamation defenses available to defendants faced with a defamation claim. But not all of these will apply to every situation or every defendant.
First, as addressed above, the statute of limitations is a common defense against republication liability. Each state will have its own defamation statute of limitations, but in most states, the statute of limitations ranges from one to three years.
Second, there is defense of privilege. ‘Privilege’ refers to an individual’s legal right to publish a defamatory statement at a specific time and to a specific audience. Several privileges that defamation defendants commonly rely on to avoid defamation liability include:
Neutral report privilege is most relevant to cases of republication liability. Also known as the neutral reportage privilege, this privilege is typically invoked when news organizations or journalists republish unproven accusations and allegations about public officials or figures. Under the neutral report privilege, simply reprinting those accusations in a news article does not subject the news organization to republication liability.
As long as the individual or organization acted in an unbiased manner and the public’s best interest, neutral report privilege will typically shield them from republication defamation liability. This protection will apply even if it turns out the news report contained false statements and resulted in harm to the victim’s reputation.
Neutral reportage has a basis in the First Amendment and exists because, as a society, we have a vested public interest in promoting and hearing open debate and discussion. This is especially true when it comes to reporting news that concerns controversies involving public officials or members of government. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (1978).
But not all states recognize the neutral report privilege. And it is not always applied uniformly in the states where it is recognized. Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002). For example, in some states, neutral reportage will confer a broad immunity in the form of absolute privilege. In others, neutral reportage is narrower in scope and will only confer a qualified privilege on the speaker or publisher.
Defamation publication and republication can take all forms and is not always cut and dry. U.S. defamation and libel law is highly nuanced and always evolving.
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If you are the target of defamation, it is critical to contact an experienced internet defamation attorney to ensure that you do not miss your state’s timeline to file your defamation lawsuit and answer any questions you have about your legal rights and remedies.
At Minc Law, we provide clients with a thorough analysis of their defamation matter and help them navigate their state’s defamation statute of limitations. We also help clients explore alternative legal claims when the statute of limitations for their defamation claim has expired.
Reach out today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our contact form.
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