Larue v. Brown, 693 Ariz. Adv. Rep. 18 (App. Div. I, August 19, 2014).
Plaintiff Mindi Larue and Defendant David Brown had two children from their prior marriage to each other. Plaintiff Mindi Larue married Plaintiff Jeremy Tucker following her divorce. Defendant David Brown married Sarah Brown following the divorce.
The Defendants initiated a criminal investigation in 2007 into whether Plaintiff Tucker abused the children from his prior marriage with Plaintiff Larue. In March 2008, a family court determined that the allegations of abuse were not proven by a preponderance of evidence
In November 2008, the Defendants published two articles on www.ripoffreport.com alleging criminal and sexual misconduct by the Plaintiffs, including that Plaintiff Larue allowed the physical abuse of her daughter by Plaintiff Jeremy Tucker and protected him when her daughter reported sexual abuse to the police. The articles revealed the Plaintiffs’ names, phone numbers, and addresses. The article also revealed Plaintiff Tucker’s place of employment. The article noted no charges were filed despite the child’s report and that the child was returned to the Plaintiffs’ home.
Beginning in February 2009 and continuing through June 7, 2009, the Defendants began responding to specific comments and questions about their articles in the comment section immediately below each article. Specific questions and comments included “Why hasn’t the little girl said something to her father,” “Why hasn’t someone called the child abuse hotline and reported this,” and “What proof do you have?” The Defendants posted statements answering these questions and expanding upon their allegations, such as Plaintiff Jeremy Tucker refusing to take a polygraph, and details of the child’s interview with the police that was not previously included in the original articles.
The Plaintiffs brought a claim for defamation against the Defendants on December 23, 2009, over a year after the original posts were made. The Defendants filed motions to dismiss the Plaintiffs’ complaint on the grounds it was barred by the one-year statute of limitations in Arizona. The court denied all of the Defendants’ motions.
The case proceeded to trial and the Defendants sought language instructing the jury that it could not consider statements “made before December 23, 2008.” The trial court did not include the requested language, and a jury found in favor of the Plaintiffs. The Defendants then appealed the judgment made against them.
Whether the Plaintiffs’ defamation claim was barred by Arizona’s one-year statute of limitations when the Defendants’ original publications on www.ripoffreport.com were made over a year before the lawsuit was brought?
No. The Plaintiffs’ cause of action is not barred by the statute of limitations because the Defendants republished the defamatory statements originally posted in November 2008 by replying to readers’ comments in March and June of 2009 in a way that affected the substance of the original publications.
(Judge Andrew W. Gould delivered, joined by Judge Peter B. Swann and Judge Jon W. Thompson).
A. DISCOVERY RULE
The “discovery rule” allows a cause of action to accrue “when the plaintiff knew or by the exercise of reasonable diligence should have known of the defendants’ conduct,” rather than at the time of the injury. The Plaintiffs asserted that the “discovery rule” applied because they did not know who wrote the articles when they were posted in November 2008. However, the Court of Appeals found that the “discovery rule” did not apply because the Plaintiffs, as early as November 24, 2008, were aware of the articles, and were convinced the Defendants had published them.
B. SINGLE PUBLICATION RULE
Under the “single publication rule,” a cause of action for defamation arises at the time the statement is first published; later circulation of the original publication does not restart the statute of limitations, nor give rise to a new cause of action.
The Court of Appeals ruled that the single publication rule applies to Internet publications. The Court of Appeals explained that a multiple publication rule for Internet publications would have a chilling effect on free speech due to the potential for uncontrolled restarts of the statute of limitations, multiplicity of suits, and harassment of defendants.
C. REPUBLICATION RULE
Under the “republication rule,” republishing material in a new edition, editing and republishing it, or placing it in a new form is a separate publication giving rise to a separate cause of action.
The Court of Appeals ruled that the question of republication in the context of Internet publication focuses on whether the update or modification affects the substance of the allegedly defamatory material. The Court of Appeals stated that mere modifications to the way information is accessed does not constitute republication, nor does republication occur when a defendant adds to or revises the content of the website if the changes are unrelated to the alleged defamatory material.
The Court of Appeals found that the Defendant’s updates to the defamatory material in this case were not simply technical changes to the website or the addition of new, unrelated material for the following reasons:
- The Defendants’ “updates and rebuttals” were posted immediately below the text of the original articles.
- The Defendants’ replies referred to and re-alleged the substance of the original articles.
- The Defendants’ comments added to and altered the substance of the original material through providing additional information in response to a reader’s questions, and re-urging the truth of the original articles in response to another reader’s criticism.
- The Defendants’ comments altered the form of the original article. The submission dates of the new comments reflected the date the comments were added (March and June 2009) and the Defendants’ comments were displayed directly beneath the original articles, thereby implying they were supplements to the original articles.
Ruling of the trial court affirmed. All judges in concurrence.
Concurring and Dissenting Opinion
No separate concurring or dissenting opinion.
By Cassandra Kirsch, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.