State of New York,
2002 NY Int. 88
This appeal presents the first occasion for us to
determine how our defamation jurisprudence, developed in
connection with traditional mass media communications, applies to
communications in a new medium -- cyberspace -- in the modern
Information Age. Specifically, we must resolve the question
whether, for statute of limitations purposes, the single
publication rule is applicable to allegedly defamatory statements
that are posted on an Internet site and, if so, whether an
unrelated modification to a different portion of the Web site
Claimant George Firth was formerly employed by the Department of Environmental Conservation as Director of the Division of Law Enforcement. His responsibilities included weapons acquisition. At a press conference held on December 16, 1996, the Office of the State Inspector General issued a report entitled "The Best Bang for Their Buck," which was critical of claimant's managerial style and procurement of weapons. On the same day, the State Education Department posted an executive summary with links to the full text of the report on its Government Locator Internet site.
On March 18, 1998, more than one year after the report
was first released and posted on the Internet, claimant filed a
claim against the State alleging that the report defamed him.
The State moved to dismiss on the ground that the claim was time-
barred under the one-year statute of limitations for defamation
(see CPLR 215 ). In opposition, claimant argued the merits of
his defamation claim, failing to address the statute of
limitations issue. The Court of Claims then sua sponte directed
the State to submit an affidavit from someone with personal
knowledge setting forth the date that the report was first placed
on the Internet and the dates, if any, of any modifications to
The State proffered an affidavit from Thomas Ruller, a State Education Department associate programmer analyst, stating that on December 16, 1996, at the request of the Inspector General, he placed an executive summary of the report on the Internet and made links to enable users to download or view the text of the report. Ruller further averred that no subsequent modifications to the text were made. In response, claimant's attorney submitted a letter indicating that neither he nor his client knew of any posting of the report on the Internet other than that described in Ruller's affidavit. The letter also noted that the State had modified the Web site by posting a report of the Inspector General regarding the Department of Motor Vehicles (DMV), which previously had been submitted to the court. Claimant asserted that a modification of a Web site should be considered a republication of information previously contained on that site.
The Court of Claims granted summary judgment to the
State, rejecting claimant's argument that the ongoing
availability of the report via the Internet constituted a
continuing wrong or new publication. The court concluded that
The Appellate Division affirmed (287 2 771), reasoning that the single publication rule applied and that the claim was not timely filed. Two dissenting Justices concluded that claimant raised an issue whether "modifications to the State's Web site linking to this report could support a finding" that the report was subsequently republished after the initial posting (287 2 at 775). Claimant now appeals as of right to this Court (see CPLR 5601 [a]).
In Gregoire v G.P. Putnam's Sons, we adopted the single publication rule, namely that
"the publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable [s]tatute of [l]imitations runs from the date of that publication"
(298 NY 119, 123 ; see Restatement [Second] of Torts §
577A). Claimant argues that the single publication rule
Under the early common law of defamation, which
claimant seeks to have applied in this case, each communication
of a defamatory statement to a third person constituted a
separate publication giving rise to a new cause of action
(Gregoire, 298 NY at 122-123 [citing Duke of Brunswick v Harmer,
14 QB 185 (1849)]). In Gregoire, we held that a publisher's sale
from stock of a copy of a book containing libelous language did
not constitute a new publication. We explained that if the
multiple publication rule were applied to such a sale, "the
[s]tatute of [l]imitation[s] would never expire so long as a copy
of such book remained in stock and is made by the publisher the
subject of a sale or inspection by the public. Such a rule would
thwart the purpose of the Legislature * * * to bar completely and
forever all actions which, as to the time of their commencement,
In addition to increasing the exposure of publishers to
stale claims, applying the multiple publication rule to a
communication distributed via mass media would permit a
multiplicity of actions, leading to potential harassment and
excessive liability, and draining of judicial resources (see
Keeton v Hustler Mag., Inc., 465 US 770, 777 ; Restatement
[Second] of Torts § 577A, Comment d, at 210,
The policies impelling the original adoption of the single publication rule support its application to the posting of the Inspector General's report regarding claimant on the State's Web site. Communications accessible over a public Web site resemble those contained in traditional mass media, only on a far grander scale. Those policies are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet. As aptly stated in Reno v American Civil Liberties Union (521 US 844, 853 ), "[f]rom the publisher's point of view, [the World Wide Web] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers and buyers." Communications posted on Web sites may be viewed by thousands, if not millions, over an expansive geographic area for an indefinite period of time.
Thus, a multiple publication rule 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
(see, Note, Cyber-Defamation and the Single Publication Rule, 81
Claimant alternatively argues that if the single publication rule governs, the State should be deemed to have republished the report within one year of the filing of the claim when it added an unrelated report of the Inspector General on the DMV to the Education Department's Web site in May 1997. We conclude as a matter of law that this modification of the State's Web site did not constitute a republication of the allegedly defamatory report at issue here.
Republication, retriggering the period of limitations,
occurs upon a separate aggregate publication from the original,
on a different occasion, which is not merely "a delayed
circulation of the original edition" (Rinaldi v Viking Penguin,
Inc., 52 NY2d at 435; Restatement [Second] of Torts § 577A,
The mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper, as in Rinaldi and Cook. The justification for the republication exception has no application at all to the addition of unrelated material on a Web site, 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.
We observe that many Web sites are in a constant state
of change, with information posted sequentially on a frequent
Finally, inasmuch as claimant failed to argue before
the Court of Claims in opposition to the State's summary judgment
motion that the State republished the report by posting a link to
it on the Office of the Inspector General's separate, internal
Web site, that issue is not preserved for our review.
1 We disagree with the conclusion of the Appellate Division majority that claimant failed to submit evidence in admissible form supporting that contention. As previously noted, this contention was made by claimant's counsel in a letter to the court in response to the State's motion for summary judgment. The letter referred to a previously submitted affidavit to which the actual DMV report, obtained from the Web site, had been attached.