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In a case with major implications in the age of cybercommunications, the New York Court of Appeals Tuesday held unanimously that the single publication rule applies to allegedly defamatory materials posted on the Internet. It also said Web site alterations unrelated to the offending article do not constitute republication for statute of limitations purposes. Firth v. State, 87, presented the court with an opportunity to apply old law to new technology — a potential problem of putting a square peg in a round hole. But the court had little difficulty fitting age-old defamation law into new-age cyberspace. In essence, the court reached back to and extended timeless common-law principles, plus its own precedents from the early 1900s, to the Internet and reached a 7-0 consensus. Also Tuesday, the court held that New York’s consumer protection laws do not allow out-of-state consumers to litigate deceptive business practice and false advertising claims against New York firms in New York Courts. Goshen v. The Mutual Life Insurance Co., 92, and Scott v. Bell Atlantic Corporation, 93. The defamation case began when the state inspector general harshly criticized environmental police officer George Firth in a report that was posted on the Internet. In “The Best Bang for Their Buck,” the inspector general questioned Firth’s integrity and criticized his management in the disposal and sale of surplus handguns. The report was released at a press conference on Dec. 16, 1996, and posted on the state’s Web site at the same time. Firth, who was suspended and later resigned, sued the state in the Court of Claims. His suit was filed 15 months after the original publication, or three months beyond the statute of limitations. Judge Francis T. Collins dismissed the action as time-barred, relying on the Court of Appeals’ decision in Lunney v. Prodigy Services Co., 90 NY2d 242 (1999). The Appellate Division, 3rd Department, unanimously agreed with Collins that the single publication rule applied. The posting of a story on the Internet constitutes a single publication, even if the piece remains on the Web site indefinitely, day after day, the appeals court said. However, the dissenters said there was an open question of whether modifications to the Web site would resurrect the statute of limitations. SINGLE PUBLICATION Tuesday, the Court of Appeals explored the issues in an opinion by Judge Howard A. Levine. “This appeal presents the first occasion for us to determine how our defamation jurisprudence, developed in connection with traditional mass media communications, applies to communications in a new medium — cyberspace — in the modern Information Age,” Levine observed. In deciding this case, the court was seemingly cognizant of the practical consequences of its ruling, and the chilling impact that a finding for Firth would generate. “[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,” Levine wrote. “Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet, which is, of course, its greatest beneficial promise.” Similarly, the court flatly rejected the argument that alterations to a Web site amount to republication. “The mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper,” Judge Levine wrote. “A rule applying the republication exception under the circumstances here would either discourage the placement of information on the Internet or slow the exchange of such information, reducing the Internet’s unique advantages. In order not to retrigger the statute of limitations, a publisher would be forced either to avoid posting on a Web site or use a separate site for each new piece of information. These policy concerns militate against a holding that any modification to a Web site constitutes a republication of the defamatory communication itself.” Appearing were Alan J. Pierce of Hancock & Estabrook in Syracuse, N.Y., for Firth, and Assistant Solicitor General Frank K. Walsh for the state. CONSUMER PROTECTION The consumer protection cases focused on General Business Law �� 349 and 350. In both cases, the Appellate Division, 1st Department, dismissed claims by non-New Yorkers. Tuesday, the Court of Appeals held that the statute addresses New York transactions, although not necessarily residents of New York. It stressed that its “analysis does not turn on the residency” of the parties. “As both the text of the statute and the history suggest, the intent is to protect consumers in their transactions that take place in New York State,” Judge Carmen Beauchamp Ciparick wrote for the 7-0 court. “It was not intended to police the out-of-State transactions of New York companies, nor was it intended to function as a per se bar to out-of-State plaintiffs’ claims of deceptive acts leading to transactions within the State.” Joining the opinion were Chief Judge Judith S. Kaye and Court of Appeals Judges Richard C. Wesley, Albert M. Rosenblatt and Victoria A.Graffeo. Sitting in for Judges Levine and George Bundy Smith were Appellate Division Justices Samuel Green of the 4th Department and David S. Ritter of the 2nd Department. Appearing were: Barry A Weprin of Milberg Weiss Bershad Hynes & Lerach in Manhattan for Goshen; Harvey Kurzweil of Dewey Ballantine in Manhattan for Mutual of New York; Joshua N. Rubin of Abbey & Ellis in Manhattan and Jason Solotaroff of Stamell & Schager in Manhattan for the Scott appellants; and Guy Miller Struve of Davis Polk & Wardwell in Manhattan for Bell Atlantic.

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