*This article has been updated to include comments from the plaintiffs’ counsel, James Prusinowski*
Bringing defamation law in line with the internet age, the New Jersey Supreme Court on Monday held that the single publication rule applies to a defamatory article posted online, but said significant changes to such a posting restart the statute of limitations.
The court didn’t give media-side lawyers everything they wanted in Petro-Lubricant Testing Laboratories v. Adelman, but did hold that internet articles based on legitimate court filings are protected by the First Amendment through the fair reporting privilege.
“We hold now that the single publication rule applies to an internet article,” wrote Justice Barry Albin for the court. “However, if a material or substantive change is made to the article’s defamatory content, then the modified article will constitute republication, restarting the [one-year] statute of limitations.”
A ”material change” is “one that relates to the defamatory content of the article at issue,” but “is not a technical website modification or the posting on the website of another article with no connection to the original defamatory article,” the court said.
A “substantive change” is “one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article” but “is not the mere reconfiguring of sentences or substitution of words that are not susceptible of conveying a new defamatory meaning to the article,” the court said.
The court rejected the argument that modifications meant to “soften” the allegedly defamatory material should not be considered a republication.
In the case at issue—involving a defamation suit against blog “eBossWatch” over a posting from seven years ago about Petro-Lubricant Testing Laboratories Inc. of Lafayette and its founder and CEO John Wintermute—the court ruled that material and substantive changes were made, but the article, because it was based on a court filing, cannot support the suit.
That article, Albin said, is protected by the fair reporting privilege.
“The right of citizens to have transparency in government and court proceedings is one of the basic pillars undergirding the fair report privilege,” he said. “[A] public document on file with the New Jersey judiciary … is protected by the fair report privilege.
“The article is a full, fair, and accurate recitation of a court-filed complaint,” Albin said of the eBossWatch article.
Justice Lee Solomon, in a concurring opinion joined by Chief Justice Stuart Rabner and Justice Walter Timpone, agreed with the ultimate outcome in the case at issue, but said the changes made to the article were not significant enough to amount to republication. Thus, the lawsuit, Solomon said, should have been dismissed because it was filed outside of the one-year statute of limitations.
“I join with the majority’s affirmance, but disagree with its reasoning,” Solomon wrote. “I find no republication because the modifications, with which the majority takes issue, did not add additional information to the original post … and did not substantively change its content as a matter of law[.]”
The suit, naming the eBossWatch site and founder Asher Adelman, had been dismissed as untimely.
According to court documents, Adelman launched eBossWatch in 2007 as a way for visitors to rate their bosses, and for job candidates to access those reviews. The site also posts annual rankings of “America’s Worst Bosses,” a list on which Wintermute occupied the 39th spot in 2010, the court documents stated.
Primarily at issue was an article first posted on eBossWatch in August 2010 titled “‘Bizarre’ and Hostile Work Environment Leads to Lawsuit,” which was based on a report by the media outlet Courthouse News Service. Documented in the article was a discrimination suit filed earlier that year by Kristin Laforgia, a former employee of Petro-Lubricant who had spent 17 years with the company and claimed Wintermute exposed her and other employees to a hostile work environment that included racist rants, name-calling and fits of rage, according to court documents.
Laforgia claimed she was terminated as retaliation for refusing to lie in connection with an investigation over another employee’s suit accusing Wintermute of misconduct. Both suits against Petro-Lubricant were settled, according to the court documents, which did not reveal the terms.
Wintermute has denied the allegations lodged in those suits.
In December 2011, an attorney for Petro-Lubricant contacted Adelman, informing him that the Laforgia suit had been settled, and demanded that the August 2010 article be taken off the site. The letter threatened litigation, according to documents.
In response, Adelman pointed out that the article was based on the complaint but nevertheless changed the title of the article to “Hostile Work Environment Lawsuit Filed Against Petro-Lubricant Testing Laboratories,” and made minor adjustments to the text, according to court documents.
The suit against Adelman was filed in June 2012, citing the Laforgia article and Wintermute’s inclusion on the “worst bosses” list.
Adelman’s summary judgment motion was granted by Sussex County Superior Court Judge Edward Gannon. But Gannon based his decision on the article’s fairness and accuracy, and held that the single publication rule did not apply because the piece essentially was changed and republished in December 2011.
The Appellate Division affirmed, but disagreed with Gannon’s holding on the statute of limitations, which, the court said, “will only be triggered if a modification to an internet post materially and substantially alters the content and substance of the article.”
“Communications posted on websites are viewed on a far wider scale than traditional mass media,” Judge Heidi Willis Currier wrote for the panel at the time, joined by Judges Jack Sabatino and Michael Haas. “Web postings are available for an indefinite period of time. If immaterial changes to an internet post were to result in a retriggering of the statute of limitations on each occasion, the legislative purpose favoring a short statute of limitations for defamation would be defeated.”
The court also held that, “if a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations.”
The attorney for Adelman, Paoli, Pennsylvania-based solo Garen Meguerian, said that while the ruling is “really good news for his client,” it is a mixed bag for journalists in the internet age.
“The court affirmed very broad protections under the First Amendment for newspapers and blogs reporting on pending lawsuits,” Meguerian said. “That part is terrific.”
However, he noted that journalists or bloggers could face problems if they move to make corrections to articles already posted online.
“They might be better off sticking to what was already published,” he said.
The lawyer for Petro-Lubricant and Wintermute, James Prusinowski of Morristown’s Trimboli & Prusinowski, said in a statement that the decision “brings this case to a close and sets a clear standard for when modifications to publications are sufficient to constitute a new publication and defamatory material becomes actionable.”
“While Plaintiffs are disappointed with the ultimate determination by the Supreme Court on the issue of the Fair Report Privilege, which was not part of the certified question, there is a degree of vindication in that litigating Defendant’s defamation truth defense, the discovery process revealed the evidence did not support LaForgia’s allegations,” Prusinowski added.