Online publication of corrections and clarifications may have legal ramifications

From the Winter 2011 issue of The News Media & The Law, page 32.

Evolution in the news industry and the modern trend of posting content to the Internet have changed many aspects of the information dissemination process, including one that may not come to mind right away: corrections and clarifications.

Yet, the way in which corrections and clarifications are handled in the online context could have legal significance for media organizations sued for defamation based on a corrected or clarified story.

The issue centers on the statute of limitations, which determines how much time a potential plaintiff has to bring a particular cause of action. The rationale underlying the policy is simple: Potential defendants should not have to defend against claims brought years, or even decades, after the allegedly wrongful conduct. The time limit also prevents old cases from clogging the courts and promotes fairness by eliminating threats of future suits.

The statute of limitations for defamation varies by state from one to three years. Courts’ strict application of limitations periods — meaning plaintiffs who do not bring their suits within the time period are barred from doing so — is particularly important in cases involving the media because of the chilling effect caused by an indefinite threat of liability.

Here is how the dilemma usually arises: A news story appears in print and is also posted to the publication’s website, usually on the same day or the day before. Later that day, the editorial staff is informed of an inaccuracy, and an appropriate correction or clarification is posted to the online version of the story and printed in the next day’s edition. This scenario generally does not present statute of limitations problems because the allegedly defamatory story, in both the print and online versions, and the online correction or clarification were published within the same 24-hour news cycle.

The more troublesome situation occurs when the editorial staff is notified of an inaccuracy a significant amount of time after the original publication of the work.

Does adding a correction or clarification to the article in the organization’s online archives constitute a republication of that article such that the statute of limitations begins to run anew from the date of the correction, thereby exposing the publisher to an additional period of potential liability for allegedly defamatory statements contained in the earlier published story?

The answer depends on the format in which the correction or clarification is added, said Slade Metcalf, a New York media attorney. If the surrounding copy and context of the article as a whole remain the same as its original publication, the majority of courts will hold that such an addition is not a republication of the work and, thus, its original limitations period still applies, he said.

“If [the editorial staff] merely adds a correction at the end of a publication, the statute [of limitations] has not begun to run again. They haven’t altered the meaning of the article itself,” Metcalf said. “But if [the editor] is going in and changing the allegedly defamatory statement to make it not defamatory now, you have changed [the article], and the statute will [re]start.”

In addition to cases of altering the allegedly defamatory statement or the article’s overall context, the statute of limitations may begin to run anew for publication of the same material under a different URL or at a different Internet address or website, Metcalf said.

That issue is the subject of a pending lawsuit by a prominent attorney against the authors of a legal blog, Overlawyered. (The Reporters Committee for Freedom of the Press and 19 media organizations filed a friend-of-the-court brief in support of the defendants.)

In that case, Wolk v. Olson, lawyer Arthur Wolk claims that the blogger-defendants posted an allegedly defamatory blog item on their website, the URL tags of which rendered the site unlikely to be discovered by popular search engines. After Pennsylvania’s one-year statute of limitations expired, the defendants allegedly deleted the original Web page and revamped the entire site, publishing its contents on a page with “enhanced search engine optimization which thrust the blog to the forefront of search returns,” according to one of Wolk’s filings.

Overlawyered denies any scheme to launch the allegedly defamatory article “to the forefront of cyber space [sic] as soon as the statute of limitations ran,” noting that it merely applied a software upgrade to its site, according to one of its pleadings.

The distinction is significant because of the so-called “discovery rule,” a related doctrine that delays the start of the statute of limitations until the plaintiff discovers the allegedly defamatory work. No court has ever held that the discovery rule may be applied in a defamation cause of action based on publication in a mass medium, including the Internet. All defamation cases that allow the statute to begin running on the date the plaintiff discovers the allegedly defamatory statement involve private communications such as those contained in a telephone conversation or private meeting. Depending on the facts and circumstances of the particular case, the discovery rule could apply in a defamation claim against an obscure, relatively unknown blog, Metcalf said.

A court examining the issue “might look at whether the allegedly defamatory statement is contained in a private discussion akin to a letter in a private personnel file, versus a . . . blog that is generally known,” he said.

Other publications, such as an allegedly not-generally-known blog like the one at issue in Wolk v. Olson, present those difficult gray areas that courts are regularly called on to decide, Metcalf added.

“I would certainly argue that if the statement is generally available on the Internet, the statute should begin to run at the time it is disseminated to the public,” he said.

“But I can see how a court would be more sympathetic. Because there are millions and millions of blogs, you can’t know about all of them and it’s very, very difficult to know about [allegedly defamatory statements made on one] until someone tells you about it. In that case, a court may have a difficult time denying an individual an opportunity to bring a claim.”