Increasing the Statute of Limitations for Arizona Internet Defamation Claims to Three Years

 

Statute of Limitations

A statute of limitation is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black’s Law Dictionary 1636 (10th ed. 2014). “The purpose of such a statute is to require diligent prosecution of known claims; thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id.

In Arizona, the statute of limitations for defamation (libel or slander) claims is one year according to Arizona Revised Statutes Section 12-541(1). A.R.S. § 12-541(1); see also Lim v. Superior Court, 126 Ariz. 481, 482-83, 616 P.2d 941, 942-43 (App. 1980). The statute’s title is “Malicious prosecution; false imprisonment; libel or slander; seduction or breach of promise of marriage; breach of employment contract; wrongful termination; liability created by statute; one year limitation.” Id. On the date of this publication, the statute states:

There shall be commenced and prosecuted within one year after the cause of action accrues, and not afterward, the following actions:

1.  For malicious prosecution, or for false imprisonment, or for injuries done to the character or reputation of another by libel or slander.

2.  For damages for seduction or breach of promise of marriage.

3.  For breach of an oral or written employment contract including contract actions based on employee handbooks or policy manuals that do not specify a time period in which to bring an action.

4.  For damages for wrongful termination.

5.  Upon a liability created by statute, other than a penalty or forfeiture.

Discovery Rule

Generally, the statute of limitations for Arizona libel and slander claims commences to run upon publication of the defamation. See Boatman v. Samaritan Health Servs., 168 Ariz. 207, 812 P.2d 1025 (App. 1990). But the discovery rule should be applied in Arizona defamation claims when the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential memorandum or a credit report. See Clark v. Airesearch Mfg. Co., 138 Ariz. 240, 242-243, 673 P.2d 984, 986-987 (App. 1983). The discovery rule is “[t]he rule that a limitations period does not begin to run until the plaintiff discovers (or reasonably should have discovered) the injury giving rise to the claim.” Black’s Law Dictionary 565 (10th ed. 2014). “The discovery rule usu. applies to injuries that are inherently difficult to detect.” Id.

Why the Statute of Limitations for Arizona Internet Defamation Claims Should be Increased to Three Years

Arizona’s statute of limitations for defamation claims was set at one year before the age of the Internet began. The last year A.R.S. § 12-541 was amended was 1996, almost twenty years ago. Computer and Internet usage has grown substantially since 1996. See Computer and Internet Trends in America.

To give this timeline some historical perspective, consider the facts that in 1996, Yahoo.com was only two years old and there was no Google.com. In 1996, Larry Page and Sergey Brin, the two people who conceived of Google, were still PhD students at Stanford working on a research project that would later lead to the launch of the world’s most popular search engine.

When A.R.S. § 12-541 was last amended, most people did not rely on the Internet for their news, for obtaining information about private individuals, or for obtaining information about local, state, national, and international businesses. Now the Internet is the primary source of news, information about individuals, and information about businesses for hundreds of millions of people.

In 1996, most individuals and businesses in Arizona only needed to monitor local or state publications to keep tabs on their personal, professional, or business reputations. Back then, it made sense to have a one-year statute of limitations for defamation claims because most individuals and businesses could easily discover they had been defamed within one year after the defamation occurred.

Now, since there are so many websites that publish information about individuals and businesses, few Arizona individuals and businesses are able to monitor their reputations online as well as they used to be able to monitor their reputations in their local communities or states. Additionally, thanks to the Internet’s ease of use and global pervasiveness, it is very easy for deceptive or vengeful people or business competitors to anonymously lie about individuals or businesses on the Internet and distribute those lies to every Internet user in the world. It is also easy for people who meant well but failed to reasonably investigate the truth of their statements to unlawfully publish harmful false and defamatory statements about Arizona residents or businesses that could give rise to viable defamation claims.

Unfortunately, even when Arizona residents and businesses discover someone has published false and defamatory statements about them via the Internet, it can be very difficult and expensive for them to discover who the person that defamed them is. The Internet makes it very easy for people who lack the courage or integrity to reveal their true names to publish defamation anonymously. Knowing that it is difficult and expensive for their victims to discover their true identities when they publish defamatory statements online, timid, negligent, reckless, or vengeful individuals as well as deceptive business competitors are more likely to deceive or persuade the Internet-using public by publishing false and defamatory statements about the individuals or businesses they wish to harm.

Other states allow their residents or businesses to file defamation actions up to three years after the defamation was published. For example, New Mexico, a state that borders Arizona and competes against Arizona for economic opportunities, applies a three-year statute of limitation in actions for injury to the reputation of any person. See NMSA § 3 7-1-8. The statute of limitations runs from the point of publication of the defamatory statement. See Fikes v. Furst, 2003-NMCA-006, 133 N.M. 146, 61 P.3d 855, reversed on other grounds, 2003-NMSC-033, 134 N.M. 602, 81P.3d545.

Arizona’s residents and businesses deserve no less protection from defamation claims than New Mexico’s residents and businesses. Arizona’s state legislators would help Arizona’s residents and businesses cost-effectively protect themselves from Internet defamation by increasing the statute of limitations for Arizona Internet defamation claims to three years. This would give Arizona’s Internet defamation victims a reasonable amount of time to discover the sources of the Internet defamation before they have to file defamation lawsuits and incur the expenses associated with that course of action. It would also give them more time to try to negotiate with the people who negligently or intentionally published the Internet defamation before they have to file lawsuits to protect their reputations.

This, in turn, would help increase the number of Internet defamation claims that could be resolved inexpensively at the pre-litigation stage and help decrease the number of Internet defamation claims that could only be resolved via expensive civil litigation in Arizona’s state or federal courts. And that would help decrease the costs of maintaining a good online professional or business reputation and costs of doing business in Arizona, making Arizona professionals and businesses more competitive.

Some might argue that increasing the statute of limitations for Arizona Internet defamation claims to three years would harm Arizona’s media or news industries or chill free speech. They might fear that Arizona’s media and news companies would have to worry much more about their risks of liability for defamation claims than they do now. While those arguments warrant some consideration, they are not very persuasive.

Competent and ethical media and news companies should only expect to be protected against frivolous defamation claims, not meritorious ones. If they investigate their reports and stories as diligently and thoroughly as they lead their watchers, readers, or listeners to believe they do, then they should have little fear that more viable defamation claims could threaten their profits if the statute of limitations for Arizona defamation claims were increased to three years. In addition to the libel insurance that is available to Arizona media and news companies, Arizona already offers them ample statutory protection against frivolous defamation claims. See A.R.S. § 12-341; A.R.S. § 12-349; A.R.S. § 12-652; A.R.S. § 12-653; A.R.S. § 12-752; A.R.S. § 12-2237. In addition to the statutory protections, there are ample common law protections for competent and ethical media and news corporations that are based on the U.S. Constitution’s freedom of the press and freedom of speech principles.

Incompetent and unethical media and news companies that recklessly or intentionally publish false and defamatory statements about others are the only ones that would benefit significantly more from a one-year statute of limitations for Arizona Internet defamation claims than a three-year statute of limitations.

The economic benefits of increasing the statute of limitations for Arizona Internet defamation claims from one year to three years could be significant and could help Arizona attract and keep more businesses and jobs. Additionally, Arizona’s legislators should give Arizona residents and businesses no less protection from Internet defamation claims than New Mexico’s legislators have given their residents and businesses. The Arizona statute of limitations for Internet defamation claims should be three years, not one.

By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.

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