Commercial Litigation and Arbitration

21st Century Defamation — Libel via Internet

In Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., 2007 U.S. Dist. LEXIS 16356 (S.D. Cal. March 7, 2007), the plaintiff claimed that the defendant posted libelous statements on the Internet about plaintiffs' products, causing plaintiffs' revenues to fall dramatically. How do traditional libel doctrines apply to defamation via web?

1. Single Publication Rule. Under the single publication rule, any single edition of a newspaper or book gives rise to one cause of action for defamation, regardless of how many copies of the newspaper or the book are distributed. The statute of limitations begins to run once the defamatory statement is published, which occurs on the first general distribution of the publication to the public. Republication of the statement gives rise to a new cause of action and a new limitations period. Republication occurs when the new edition is issued. In Sundance, District Judge Jeffrey T. Miller held that the single publication rule applies to statements made on the Internet (citing Traditional Cat Ass'n, Inc. v. Laura Gilbreath, 118 Cal. App. 4th 392 (2004), and Firth v. State 98 N.Y.2d 365 (2002)).

2. Hits. The number of website visitors — in this case, more than 4 million hits — does not affect when the defamatory statement is published for purposes of the single publication rule. (These are effectively newspaper or book readers who pick up the writing after first publication.)

3. Links. Providing links on one web page to statements already published on another, without more, does not republish those statements. ‛Rather, the court finds that such linking is more reasonably akin to the publication of additional copies of the same edition of a book, which is a situation that does not trigger the republication rule.“

4. Web Page Modification. Evidence that defendants modified the headers of the web page on which the challenged statements appear in order to promote a different product may constitute republication of the defamatory statement: ‛A new edition of a book containing previously published defamatory statements gives rise to a fresh claim for libel…. A rational trier of fact could find that the header change, which was made because Defendants wanted to promote [a new product] and stop promoting its original product [albeit still at the expense of plaintiff’s product] … could constitute a new edition of the website since it appears the change was made deliberately and for a substantive purpose: to sell [the new product] and cease selling the original product.“

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