[Eugene Volokh] Changing post in immaterial ways — or to soften its allegations — does not restart statute of limitations

Say you’ve put up a Web page that criticizes a plaintiff; he thinks it’s libelous. Some time later, he demands that you take it down. You don’t do that, but you do make some minor changes that, if anything, only soften the allegations.

Does your making the changes restart the statute of limitations? Or does the statute of limitations run from the day the article was originally published?

Yesterday’s New Jersey appellate decision in Petro-Lubricant Testing Laboratories v. Adelman concludes that “minor changes” that are either “immaterial” or at most “lessened the ‘sting’ of the publication” do not restart the statute of limitations (which in many states is quite short, just a year). That’s an important holding, and to my knowledge this is the first case to squarely render such a holding (though other cases have pointed in that direction).

I’m pleased to say that my students Nate Barrett, Charles Linehan and Michael Smith and I filed a friend of the court brief in the case on behalf of the Reporters Committee for Freedom of the Press (many thanks to our invaluable pro bono local counsel, Daniel Schmutter of Hartman & Winnicki), and I also argued on behalf of amici, alongside defendant’s lawyer Garen Meguerian.

Here is an excerpt from the court opinion (some paragraph breaks added):

In this defamation case, we are asked to decide whether a second posting of an article on a website with minor changes from the original posting was sufficient to categorize it as a separate publication, and therefore subject to a new statute of limitations.

We find the minor changes between the two articles to be immaterial and not sufficient to render them two separate publications. In addition, to the extent that any of the changes could be regarded as material, on the whole they lessened the “sting” of the publication. Therefore, the single publication rule is applicable and the complaint was properly dismissed as untimely under the one-year statute of limitations….

The website eBossWatch.com was created by defendant Asher Adelman for people to rate their employers and bosses so that job seekers might search workplaces and “access inside information about what it’s really like to work there.” After viewing an article on the Courthouse News Service1 that detailed allegations of gender discrimination and a hostile workplace environment in a complaint filed by an employee against plaintiffs Petro-Lubricant Testing Laboratories, Inc. (PTL) and John Wintermute, defendant published an article on his website reporting on the same complaint.

The article, entitled “‘Bizarre’ and Hostile Work Environment Leads to Lawsuit,” was posted on August 3, 2010. It repeated the allegations contained in the complaint which described Wintermute as a “violent bully, a racist, and a womanizer who regularly brought guns to the workplace.” Allegations of Wintermute’s explosive temper, his sexual affairs with female employees, and his retaliation by firing the employee when she refused to lie for the company in another employment-related lawsuit were also described.

In 2010, defendant also posted a webpage entitled “America’s Worst Bosses 2010,” a list that ranked bosses and named their employers. Wintermute was named in the list and a hyperlink led to the eBossWatch article.

In December 2011 [i.e., after the statute of limitations on the initial post had already run -EV], an attorney representing plaintiffs wrote to defendant stating:

It has recently come to our attention that you have published false and defamatory statements concerning our client in an article. This letter serves as your final notice to remove this article from your website or face liability under New Jersey law for defamation, defamation per se, and false light invasion of privacy.

The letter advised that defendant “may be held liable for significant monetary damages,” and demanded defendant remove the article, related links, and metatags. The letter stated that the employee “was fired from Petro-Lubricant for reasons unrelated to anything contained in her complaint” and that her “retaliatory lawsuit containing these baseless allegations” had been settled.

Defendant responded to plaintiffs’ counsel that the “article is clearly a reporting of the complaint that was filed by [the employee] against [plaintiffs]. [O]ur article contains only factual statements about the abovementioned complaint and its allegations.” Defendant stated further that “to make it even more clear that our article is a factual reporting of the [employee’s] complaint, we have made some minor changes to the wording and to the article’s title.” The email pr