The New Jersey Supreme Court has agreed to hear a case that has a significant bearing on media law in the internet age.
The court granted a petition for certification in Petro-Lubricant Testing Laboratories v. Adelman, a defamation suit against blog “eBossWatch” over a posting from nearly seven years ago about Petro-Lubricant Testing Laboratories Inc. of Lafayette, and its founder and CEO, John Wintermute.
The suit, also naming eBossWatch founder Asher Adelman, had been dismissed as untimely, and at issue now is whether modifications made to the original posting tolled the statute of limitations—an issue that implicates the “single-publication rule.”
“I was hoping that the Appellate Division ruling was going to be the end, but I’m hopeful the Supreme Court will see this case for what it is,” Adelman’s attorney, Paoli, Pennsylvania, solo Garen Meguerian, said in an interview. “We’re now into the fifth year of this litigation.”
James Prusinowski of Trimboli & Prusinowski in Morristown, for Petro-Lubricant and Wintermute, said bloggers diverge from the print news cycle of eras past—they are “driving content” through search engine optimization and other means, and “want audiences to come to them.”
“We’ve got a number of different sites that, all they’re about is putting out bad press about people,” Prusinowski said.
“I think there’s an important overarching issue for businesses here,” he said. “The law needs to catch up to addressing these types of issues.”
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.
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 the decision.
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 lodged 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 last Oct. 19 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, 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.”
Appellate papers were filed with the Supreme Court last November and December.
“Granting certification and deciding the issues applicable to this case will have implications on internet-based defamation claims in the future which are pervasive,” Petro-Lubricant argued in its ultimately successful petition.
The petition pointed to a line of cases—chiefly the Appellate Division’s 2005 ruling in Churchill v. State—that “provide that when there are changes or edits to the body of the defamatory text, the single publication rule is no longer applicable as the new publication is a new edition, which carries with it its own cause of action and statutes of limitation.”
“The correct application of the single publication rule shows that the December 2011 post is a new posting,” Prusinowski wrote.
Adelman, in his reply, said the appeals court’s ruling was “entirely consistent with its prior holding” in Churchill.
“The court saw through plaintiffs’ attempts to obfuscate the facts, particularly their attempt to overemphasize minor differences between the original and modified versions of the article,” Meguerian wrote.
The reply contended that the Appellate Division’s ruling met the policy goals of “favoring a short statute of limitations period for defamation claims and preventing the constant tolling of that limitations period.”
The Supreme Court order granting the plaintiffs’ petition, dated Feb. 13 and was made public on Feb. 15.
A separate order from the same day denied certification on a cross-petition by Adelman, who sought review of his unsuccessful retaliation counterclaim.
Meguerian in the interview said, “this case firmly was not republication.”
“I suspect the Supreme Court wants to address republication once and for all, and set the parameters,” he added.
Asked whether he sees it as a positive that the court now has the chance to issue such a holding, Meguerian said, “nothing is a positive when you have to fight this hard against absurdity.”
“Think about the time and expense that’s gone into defending this ordinary blogger,” he said.
Prusinowski in his interview said the Appellate Division ruling was “clearly a deviation” from the standard because it expanded the analysis necessary to the single-publication rule to include tone and substance of a modification.
“Defamation really is a binary thing—it either is or it isn’t,” Prusinowski said. “Just because you tried to tone it down—that’s not the standard. The standard is, did you act negligently by publishing false information?”
Petro-Lubricant and Wintermute are also represented by Mark Clark of Traverse Legal in Traverse City, Michigan.
Contact the reporter at firstname.lastname@example.org. On Twitter: @dgialanellanjlj.