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19-P-936 Appeals Court
ROBERT WOLSFELT vs. GLOUCESTER TIMES.
No. 19-P-936.
Essex. May 8, 2020. - September 1, 2020.
Present: Singh, Wendlandt, & McDonough, JJ. 1
Libel and Slander. Newspaper. Internet. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations.
Civil action commenced in the Superior Court Department on June 12, 2015.
The case was heard by Shannon Frison, J., on a motion for summary judgment.
Steven C. Goldwyn for the plaintiff. Jonathan M. Albano for the defendant.
WENDLANDT, J. In libel cases, the general rule is that the
cause of action accrues, and the statute of limitations begins
to run, on the date of the publication of the alleged defamatory
1 Justice McDonough participated in the deliberation on this case while an Associate Justice of this court, prior to his reappointment as an Associate Justice of the Superior Court. 2
statement. See Flynn v. Associated Press, 401 Mass. 776, 780
(1988). In this appeal, we apply the statute of limitations to
a defamatory statement posted on a newspaper's website. We hold
that such Internet postings are subject to the single
publication rule, which governs other types of aggregate
communications. Under the rule, a person may bring one (and
only one) cause of action for defamation against the publisher
based on its publication of the defamatory statement. The
statute of limitations for the action begins to accrue when the
statement first is posted on the website. We also hold that
where (as here) the website is widely and publicly available and
not maintained confidential, the discovery rule does not apply.
Applying these principles to the defamatory articles in this
case, we conclude that the plaintiff's claim is time barred as
to the first publication. With regard to the second
publication, the alleged defamatory statements about the
plaintiff's arrest are governed by the fair report privilege.
Accordingly, we affirm the allowance of summary judgment in
favor of the defendant.
Background. The plaintiff, Robert Wolsfelt, brought claims
against the defendant, Gloucester Times, for its defamatory
articles. The articles concern two separate incidents of
domestic violence, each of which resulted in Wolsfelt's arrest. 3
Article one. The first incident occurred on November 30,
2011. 2 The Gloucester Police Department received a 911 call from
Wolsfelt who claimed he was injured after his fiancée pushed him
down the stairs. En route to the scene, the officers were
notified that the fiancée had also called the police, stating
that she had locked herself in the bathroom in fear of Wolsfelt.
After the officers arrived, the fiancée told the officers that
Wolsfelt called her earlier from a bar where he had been
drinking; she told him not to return home. Nonetheless,
Wolsfelt (in an intoxicated state) returned home. He rummaged
through her pocketbook, and when she told him to stop, he
grabbed her by the throat. Officers noticed that she had red
marks on her neck. She pushed him, causing him to fall down the
stairs. 3
Wolsfelt was transported to a hospital where he relayed a
different version of the events. He stated that while
retrieving his computer, his fiancée pushed him down the stairs.
In response to questions regarding the red marks on his
fiancée's neck, Wolsfelt posited that the marks may have been
left when the fiancée was wrestling with her children. After
Wolsfelt was released from the hospital, he was arrested and
2 We recite the facts as set forth in the police reports for each arrest. 3 The fiancée did not seek a restraining order. 4
charged with domestic assault and battery. On the same day,
Gloucester Times published an article online regarding this
incident (article one). Article one, entitled "Gloucester
Police/Fire: City man charged in domestic assault," largely
tracked the police report.
On February 17, 2012, a "general continuance" with a "no
abuse" order was entered in Wolsfelt's criminal case. 4
Gloucester Times updated article one on its website, stating
"[t]he charge of assault and battery brought against Robert
Wolsfeld [sic] was continued without a finding on Feb. 17, 2012"
(article one update). The article one update appeared above the
original article one, which was set forth in full on the same
page.
Article two. The second incident occurred less than one
year later, during the late hours of June 7, 2012. The
Gloucester Police Department received a 911 call from the
fiancée, alleging that Wolsfelt was attempting to harm her, and
that knives were present in the area. En route to the scene,
the officers received a call from Wolsfelt and directed him to
remain outside. When the officers arrived at the scene,
Wolsfelt was sitting outside of the residence, apparently
intoxicated. He stated that he had an argument with his
4 The charge was dismissed on May 18, 2012. 5
fiancée, and when she called the police, he tried to take the
telephone from her. Wolsfelt admitted that, during the ensuing
fight, he pushed her. His fiancée was also interviewed by the
officers; she reiterated Wolsfelt's account, providing a few
more details. Wolsfelt was arrested and charged with, inter
alia, domestic assault and battery. On June 8, 2012, Gloucester
Times published an article online regarding this incident
(article two). Article two, entitled "Gloucester Police/Fire:
Lanesville man charged in domestic assault," largely tracked the
police report.
On February 19, 2013, Wolsfelt admitted to sufficient
facts, and a continuance without a finding (CWOF) was entered.5
Gloucester Times posted an update to article two, stating "[t]he
charge of assault and battery brought against Robert Wolsfeld
[sic] was continued without a finding for 18 months on Feb. 19,
2013" (article two update). The article two update appeared at
the top of the webpage, just above article two, which was set
forth in full.
Wolsfelt's discovery of the articles. Wolsfelt did not
learn about the articles until February 2013, when he applied
for a job. On June 12, 2015, Wolsfelt brought an action against
Gloucester Times for defamation and injunctive relief seeking
5 The charge was dismissed on August 19, 2014. 6
removal of the two articles, along with their respective
updates. He asserted that the articles contained "untrue,
incomplete, misleading[,] and damaging assertions," resulting in
harm that included loss of reputation and potential employment.
The filing date of the complaint was more than three years after
article one, the article one update, and article two first were
posted online; however, it was less than three years after the
publication of the article two update. Gloucester Times moved
for summary judgment, which a Superior Court judge allowed on
the basis that Wolsfelt's claims were time-barred and, in any
event, the articles were protected under the fair report
privilege.
Discussion. "The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to a judgment as a
matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824
(1974). Summary judgment "make[s] possible the prompt
disposition of controversies on their merits without a trial, if
in essence there is no real dispute as to the salient facts or
if only a question of law is involved" (citation
omitted). Kourouvacilis v. General Motors Corp., 410 Mass. 706,
715 (1991). Where the nonmovant bears the burden of proof at 7
trial, the moving party "is entitled to summary judgment if [it]
demonstrates . . . that [the nonmovant] has no reasonable
expectation of proving an essential element of [his] case"
(citation omitted). Butcher v. University of Mass., 483 Mass.
742, 747 (2019), cert. denied sub nom. Butcher v. Vishniac,
S. Ct. (2020). Our review is de novo. See LeBlanc v. Logan
Hilton Joint Venture, 463 Mass. 316, 318 (2012).
1. Statute of limitations. We turn first to the question
whether Wolsfelt's complaint for defamation was filed within the
statute of limitations. An action for defamation must be
commenced within three years after the cause of action accrues.
G. L. c. 260, § 4. "In defamation cases, 'the general rule is
that the cause of action accrues, and the statute of limitations
begins to run, on publication of the defamatory statement.' A
statement is published when it is communicated to a third
party." Harrington v. Costello, 467 Mass. 720, 725 (2014),
quoting Flynn, 401 Mass. at 780. Where a defendant raises the
statute of limitations as an affirmative defense, the plaintiff
bears the burden of proving the action was timely
commenced. Parr v. Rosenthal, 475 Mass. 368, 376 (2016).
a. Article one and update. With regard to article one and
the article one update, Wolsfelt filed his complaint more than
three years after publication of the alleged defamatory
statements on the defendant's website. Accordingly, Wolsfelt 8
"has the burden of establishing facts that take him outside the
statutory three-year limitations period." Harrington, 467 Mass.
at 725.
i. Single publication rule. Wolsfelt first appears to
argue that each time a third party accessed the website on which
article one and its update were posted, a new communication
occurs, and thus the statute of limitations has not run so long
as article one and its update "remain[] on the Internet."
Concluding that the single publication rule applies, we
disagree.
Under the common law, each separate communication of a
defamatory statement to a third party gave rise to a new cause
of action. See Restatement (Second) of Torts § 577A(1) (1977).
The single publication rule addresses the treatment of an
aggregate communication of a defamatory statement as occurs
when, for example, a statement is made to a crowd, broadcast by
television or radio, or printed in a newspaper or book. Under
the rule, the publication of a defamatory statement in this
aggregate manner is, in legal effect, one publication, although
such publication is received by multiple third parties at the
same time or consists of many copies widely distributed.
See Bigelow v. Sprague, 140 Mass. 425, 427-428 (1886) ("all the
several deliveries [of the defamatory pamphlet] made by [the
defendant] were to be treated as substantiating the allegation 9
of a [single] publication. . . . [F]or, if each delivery of a
copy is to be dealt with only[,] and for all purposes[,] as a
separate publication, courts could not distinguish between
publication in a newspaper and in a private letter. A closer
analogy . . . would seem to be that of an oral slander addressed
to a crowd"). 6
Rather than each copy giving rise to a separate cause of
action, the single publication rule treats the aggregate
communication as one publication that gives rise to one and only
one cause of action. See Restatement (Second) of Torts
§ 577A(4). The statute of limitations for the single action
runs from the point at which the original dissemination
occurred. See Flynn, 401 Mass. at 780 (in libel cases, statute
of limitations begins to run on date of publication).7
The single publication rule is founded on two
considerations. First, "[t]he rule is justified by the
necessity of protecting defendants and the courts from the
numerous suits that might be brought for the same words if each
person reached by such a large-scale communication could serve
6 See also Restatement (Second) of Torts § 577A(3), at 208 ("Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication").
7 See also Firth v. State, 98 N.Y.2d 365, 369 (2002) (under single publication rule, statute of limitations runs from date of first publication). 10
as the foundation for a new action." Restatement (Second) of
Torts § 577A comment c, at 209. 8 A contrary rule -- one that
would permit a new cause of action for each third party who
receives the communication to restart the limitations period --
would thwart the repose intended by the Legislature in
establishing a statute of limitations in the first place.
See Firth v. State, 98 N.Y.2d 365, 369 (2002).
Second, the single publication rule inures to the benefit
of the allegedly defamed party, who may recover all damages
stemming from the multiple copies of the publication in the one
action. See Bigelow, 140 Mass. at 427 ("when a libel is printed
in an edition of many copies for general circulation, the extent
of the circulation procured or caused by the publisher may be
shown against him as evidence of the injury to the person
libeled"). See also Firth, 98 N.Y.2d at 370 ("the single
publication rule actually reduces the possibility of hardship to
plaintiffs by allowing the collection of all damages in one case
commenced in a single jurisdiction").
These considerations counsel in favor of applying the
single publication rule to Internet publications. The Internet
8 See Christoff v. Nestlé USA, Inc., 47 Cal. 4th 468, 478 (2009) (common-law multiple publications rule "had the potential to subject the publishers of books and newspapers to lawsuits stating hundreds, thousands, or even millions of causes of action for a single issue of a periodical or edition of a book" [citation omitted]). 11
(when coupled with a robust search engine) comprises a platform
for instantaneous, worldwide communications to a multitude of
readers across geographies, often for an indefinite period of
time. See Firth, 98 N.Y.2d at 370, citing Reno v. American Civ.
Liberties Union, 521 U.S. 844, 853 (1997) (policies impelling
original adoption of single publication rule "are even more
cogent when considered in connection with the exponential growth
of the instantaneous, worldwide ability to communicate through
the Internet"). Permitting a separate cause of action for each
"hit" or viewing of defamatory statement by a third party on the
Internet "would implicate an even greater potential for endless
retriggering of the statute of limitations, multiplicity of
suits and harassment of defendants. Inevitably, there would be
a serious inhibitory effect on the open, pervasive dissemination
of information and ideas over the Internet, which is, of course,
its greatest beneficial promise." Firth, supra. See Pippen
v. NBCUniversal Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013)
("excluding the Internet from the single-publication rule would
eviscerate the statute of limitations and expose online
publishers to potentially limitless liability"). At the same
time, the single publication rule permits a plaintiff to
recover, in one suit, all damages stemming from the allegedly
defamatory statement instead of filing separate suits each time 12
a third party accesses the webpage containing the defamatory
content. See Bigelow, 140 Mass. at 427; Firth, supra.
For these reasons, "[e]very state court that has considered
the question applies the single-publication rule to information
online." Pippen, 734 F.3d at 615, citing Christoff v. Nestlé
USA, Inc., 47 Cal. 4th 468 (2009); Churchill v. State, 378 N.J.
Super. 471 (App. Div. 2005); Woodhull v. Meinel, 145 N.M. 533
(App. 2008); Firth, 98 N.Y.2d 365; T.S. v. Plain Dealer, 194
Ohio App. 3d 30 (2011); Kaufman v. Islamic Soc'y of Arlington,
291 S.W.3d 130 (Tex. App. 2009); Ladd v. Uecker, 323 Wis. 2d 798
(App. 2010). 9 Additionally, Federal courts considering the
question have concluded that the relevant State supreme court
would agree. 10 Accordingly, we now join those jurisdictions and
9 See Simon v. Arizona Bd. of Regents, 28 Media L. Rep. (BNA) 1240 (Ariz. Super. Ct. 1999); Traditional Cat Ass'n v. Gilbreath, 118 Cal. App. 4th 392 (2004); McCandliss v. Cox Enters., Inc., 265 Ga. App. 377 (2004), overruled on other grounds by Infinite Energy, Inc. v. Pardue, 310 Ga. App. 355, 363 (2011). 10See Pippen, 734 F.3d at 615, citing Shepard v. TheHuffingtonPost.com, Inc., 509 Fed. Appx. 556 (8th Cir. 2013) (Minnesota law); In re Philadelphia Newspapers, LLC, 690 F.3d 161, 174–175 (3d Cir. 2012) (Pennsylvania law). See also Kiebala v. Boris, 928 F.3d 680, 686 (7th Cir. 2019) (Illinois law); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007) (Texas law); Jankovic v. International Crisis Group, 494 F.3d 1080, 1087 (D.C. Cir. 2007) (District of Columbia law); Van Buskirk v. New York Times Co., 325 F.3d 87, 89-90 (2d Cir. 2003) (New York law); Lane v. Strang Communications Co., 297 F.Supp. 2d 897 (N.D. Miss. 2003) (Mississippi law); Mitan v. Davis, 243 F.Supp. 2d 719 (W.D. Ky. 2003) (Kentucky law). 13
extend the single publication rule to articles posted to an
online media's publicly available website.11
ii. Discovery rule. Wolsfelt next argues that the
discovery rule tolled the statute of limitations for article one
and its update because he did not learn about the publications
until February 2013, when he applied for a job. The discovery
rule tolls the statute of limitations period for certain causes
of action such that the action does not "accrue" (and hence the
limitations does not start) until "the plaintiff learns, or
reasonably should have learned, that he has been harmed by the
defendant's conduct" (citation omitted). Flynn, 401 Mass. at
781 (collecting cases). The rule "applies only to 'inherently
unknowable' causes of action." Id., quoting White v. Peabody
Constr. Co., 386 Mass. 121, 130 (1982). By contrast, where an
alleged defamatory publication is broadly circulated to the
public, and did not involve concealment or confidential
communications, the discovery rule does not apply.
11Wolsfelt cites to no authority declining to extend the single publication rule to Internet publications; and the only case we have located declining to apply the single publication rule to an Internet publication addressed a set of confidential electronic communications with limited accessibility that was different in kind from the type of mass communication presented here. See Swafford v. Memphis Individual Practice Ass'n, Tenn. Ct. App., No. 02A01-9612-CV-00311 (June 2, 1998) (where defamatory statements from electronic database were confidentially maintained and communicated only in response to member request, single publication rule did not apply). 14
See Harrington, 467 Mass. at 727 n.10; Flynn, supra at 781-782 &
n.7. Thus, in Flynn, supra at 781, the court held that the
discovery rule does not toll the statute of limitations for
defamatory statements in a printed newspaper widely available to
the public. See Fleury v. Harper & Row, Publs., Inc., 698 F.2d
1022, 1028 n.4 (9th Cir. 1983) (discovery rule inapplicable to
book publication announced in nationally distributed magazine
widely available to public as it was not confidential document
nor concealed).
The same reasoning precludes application of the discovery
rule in the present case. In particular, the record does not
establish that Wolsfelt's cause of action was inherently
unknowable on November 30, 2011, when article one published or
on February 17, 2012, when the update published. Wolsfelt does
not allege that the article or the update were concealed or
confidential. To the contrary, Wolsfelt admits that the article
and the update were publicly available on the Gloucester Times'
website and that a search engine query with his name produces
the article and update as a result. Accordingly, Wolsfelt's
claims for defamation regarding article one and its update,
brought on June 12, 2015, are time barred.
b. Article two and update. Wolsfelt argues that article
two, which was published on June 8, 2012, and was updated on
February 19, 2013, stands on different footing in light of the 15
republication exception to the single publication rule.
Specifically, the single publication rule applies only to the
first release of a defamatory statement; under the republication
exception, "[a]ny future republication of the [alleged] false
statements . . . could form the basis for a new cause of action
against the republisher." Flynn, 401 Mass. at 780 n.5. Thus,
republishing material, editing and reissuing material, or
placing it in a new form that includes the defamatory material,
can create a new cause of action, which begins to run on the
date of republication. See Restatement (Second) of Torts § 577A
comment d, at 210 ("the single publication rule . . . does not
include separate aggregate publications on different
occasions"). Wolsfelt contends that the article two update
acted as a republication of article two. We need not decide
whether the placement of the article two update on the same
webpage and just above the text of article two republished
article two because, even assuming arguendo that it did, the
statements in article two fall within the fair report
privilege. 12
12As courts in other jurisdictions have noted, the application of the republication exception is complicated with regard to Internet publications because many websites "are in a constant state of change, with information posted sequentially on a frequent basis." Firth, 98 N.Y.2d at 371. Application of the republication exception to any change of a website would, in the context of the Internet, foil the single publication rule, "discourag[ing] the placement of information on the Internet or 16
2. Fair report privilege. "The fair report privilege
establishes a safe harbor for those who report on statements and
actions so long as the statements or actions are official and so
long as the report about them is fair and accurate." Howell
v. Enterprise Publ. Co., 455 Mass. 641, 651 (2010).
slow[ing] the exchange of such information, reducing the Internet's unique advantages [and] . . . forc[ing a publisher] either to avoid posting on a Web site or [to] use a separate site for each new piece of information." Id. at 372. These courts have held that minor or nonsubstantive changes to an Internet posting do not fall within the republication exception, but substantive changes may. Compare Kiebala v. Boris, 928 F.3d 680, 686-688 (7th Cir. 2019) (republication doctrine did not apply where defendant did not change substance of original post but only updated date on website); In re Philadelphia Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012) (neither hyperlink nor reference to defamatory material fell within republication exception); Jankovic v. International Crisis Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007) (online posting of previously printed report without updating content did not fall within republication exception); Canatella v. Van De Kamp, 486 F.3d 1128, 1135-1136 (9th Cir. 2007) (no republication where defendant publishers changed Internet address of original post containing defamatory statement but content remained unchanged); Salyer v. Southern Poverty Law Ctr., Inc., 701 F.Supp. 2d 912, 916-917 (W.D. Ky. 2009) (website articles that referenced original defamatory article did not fall within republication exception because they merely called existence of article to attention of new audience and did not present defamatory content of article to audience); Firth, 98 N.Y.2d at 371 ("mere addition of unrelated information to a Web site [that had a defamatory statement as to which the statute of limitations has run] cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper . . . for it is not reasonably inferable that the addition was made either with the intent or the result of communicating the earlier and separate defamatory information to a new audience"), with Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012) (adding substantive information regarding plaintiffs to website may create new cause of action under republication exception). 17
See Butcher, 483 Mass. at 750. (discussing history of fair
report privilege). Where, as here, police undertake an official
response to a complaint, such as an arrest, both that response
and the allegations that gave rise to it fall within the
privilege. See Jones v. Taibbi, 400 Mass. 786, 795 (1987) ("The
publication of the fact that one has been arrested, and upon
what accusation, is not actionable, if true" [citation
omitted]). Wolsfelt does not contest that he was arrested as
reported by article two. Nonetheless, he asserts that the
omission of certain details strips the article of the
protections afforded by the fair report privilege.
"[A] report need give only a rough-and-ready summary that
was substantially correct in order to qualify for the fair
report privilege. A statement is considered a fair report if
its gist or sting is true, that is, if it produces the same
effect on the mind of the recipient which the precise truth
would have produced" (quotations and citation omitted). ELM
Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 783 (1989).
Article two tracks almost precisely the police report of
Wolsfelt's arrest. 13 Wolsfelt complains only that it left out
the detail that his lip was bleeding, that the fiancée later
accused him not only of shoving her but also of choking her, and
13Wolsfelt does not claim the article two update was defamatory. 18
that Gloucester Times did not interview him to obtain "his side"
for the publication. None of these affect the application of
the privilege; the gist and sting of article two is the same
without these details. Wolsfelt, who was intoxicated at the
time, was arrested for assault and battery after his fiancée,
whom he admitted shoving, called the police. Nothing more was
required to provide the "rough-and-ready summary" that is
protected by the fair report privilege.14 Id.
Judgment affirmed.
14Wolsfelt also contends that statements in article two concerning separate incidents unrelated to Wolsfelt were "prejudicial inaccuracies" and harmful because the article did not indicate expressly that there were separate crimes, unrelated to Wolsfelt. No reasonable reading of article two fairly suggests that these distinct incidents, which are expressly described as involving different occurrences at different residences, concerned Wolsfelt. See New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 (1985).