Firth v. State of NY

• Decision Date: 02 July 2002
• Citation: 747 N.Y.S.2d 69,98 N.Y.2d 365,775 N.E.2d 463
• Parties: GEORGE FIRTH, Appellant, v. STATE OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 365

775 N.E.2d 463

747 N.Y.S.2d 69

GEORGE FIRTH, Appellant, v. STATE OF NEW YORK, Respondent.

Court of Appeals of the State of New York.

Argued May 30, 2002.

Decided July 2, 2002.

Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), and Carl G. Dworkin, Albany, for appellant.

Eliot Spitzer, Attorney General, Albany (Frank K. Walsh, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

LEVINE, J.

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 constitutes a republication.

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 Information Locator Service 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 [3]). 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 text of the report. The court also gave claimant the opportunity to respond.

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 statute of limitations began to run on December 16, 1996, when the report was first made available on the Internet. The court did not address whether the modification of the State's Web site by the addition of the report on the DMV constituted a republication of the report concerning claimant.

The Appellate Division affirmed (287 AD2d 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 website linking to this report could support a finding" that the report was subsequently republished after the initial posting (287 AD2d at 775). Claimant now appeals as of right to this Court (see CPLR 5601 [a]).

In Gregoire v 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]imitation[s] runs from the date of that publication" (298 NY 119, 123 [1948]; see Restatement [Second] of Torts § 577A [3]).

Claimant argues that the single publication rule should not be applied verbatim to defamatory publications posted on the Internet in light of significant differences between Internet publications and traditional mass media. Instead, claimant maintains that because a Web site may be altered at any time by its publisher or owner and because publications on the Internet are available only to those who seek them, each "hit" or viewing of the report should be considered a new publication that retriggers the statute of limitations. We disagree.

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, overpass the limitation there prescribed upon litigation" (id. at 125-126 [internal quotation marks omitted]; see also Wolfson v Syracuse Newspapers, 254 App Div 211 [1938], affd without op 279 NY 716 [1939]).

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 [1984]

; Restatement [Second] of Torts § 577A, Comment d, at 210, supra; Note, Cyber-Defamation and the Single Publication Rule, 81 BU L Rev 895, 898, 913 [2001]). Further, 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 (see Restatement, Comment d; Note, 81 BU L Rev at 898). Thus, we have held that, absent republication, "neither the time nor the circumstance in which a copy of a book or other publication finds its way to a particular consumer is, in and of itself, to militate against the operation of the unitary, integrated publication concept" (Rinaldi v Viking Penguin, 52 NY2d 422, 433 [1981]).

The policies impelling the original adoption of the single publication rule support its application to the posting of the Inspector...