Petro-Lubricant Testing Labs., Inc. v. Adelman

• Decision Date: 07 May 2018
• Docket Number: 078597,A–39 September Term 2016
• Citation: 233 N.J. 236,184 A.3d 457
• Parties: PETRO–LUBRICANT TESTING LABORATORIES, INC., and John Wintermute, Plaintiffs–Appellants, v. Asher ADELMAN, d/b/a/ eBossWatch.com, Defendant–Respondent.
• Court: New Jersey Supreme Court

233 N.J. 236

184 A.3d 457

PETRO–LUBRICANT TESTING LABORATORIES, INC., and John Wintermute, Plaintiffs–Appellants,

v.Asher ADELMAN, d/b/a/ eBossWatch.com, Defendant–Respondent.

A–39 September Term 2016

078597

Supreme Court of New Jersey.

Argued November 6, 2017

Decided May 7, 2018

James T. Prusinowski argued the cause for appellants (Trimboli & Prusinowski, attorneys; James T. Prusinowski, and Mark G. Clark, of the Michigan bar, admitted pro hac vice, of counsel and on the briefs, and Stephen E. Trimboli, on the briefs).

Garen Meguerian argued the cause for respondent (Garen Meguerian, on the brief).

Eugene Volokh (First Amendment Clinic) of the California bar, admitted pro hac vice, argued the cause for amicus curiae Reporters Committee for Freedom of the Press (Hartman & Winnicki; and the First Amendment Clinic, attorneys; Daniel L. Schmutter and Eugene Volokh, on the brief).

CJ Griffin argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Pashman Stein Walder Hayden, and the American Civil Liberties Union of New Jersey Foundation, attorneys; CJ Griffin, on the brief, and Edward L. Barocas, Jeanne M. LoCicero, Alexander R. Shalom, of counsel and on the brief).

Thomas J. Cafferty argued the cause for amicus curiae New Jersey Press Association (Gibbons, attorneys; Thomas J. Cafferty, of counsel and on the brief, and Nomi I. Lowy and Lauren James–Weir, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

Defamation law balances two competing interests—an individual's right to protect his reputation from unjustified and false aspersions and our citizens' right to free expression and robust debate in our democratic society. Because an informed public is a prerequisite to a functioning democracy, our common law provides special safeguards to protect speech from unwarranted attacks through the legal process. At issue in this case are two common law doctrines that protect speech from overreaching lawsuits: the single publication rule and the fair report privilege.

Generally, the single publication rule bars the resetting of the one-year statute of limitations governing a defamation action when multiple copies of a printed article are widely distributed and read. In this appeal, we must determine how the single publication rule applies to an article posted on a website and what changes to an article's content constitute a republication that triggers the running of a new statute of limitations.

Plaintiffs Petro–Lubricant Testing Laboratories, Inc., and its chief executive officer and co-owner, John Wintermute (collectively Wintermute), filed an action against defendant Asher Adelman alleging defamation per se, defamation, false light publicity, and intentional infliction of emotional distress. Adelman ran a website named "eBossWatch.com" that published a list of "America's Worst Bosses." The website posted an article recounting allegations in a civil complaint that Wintermute engaged in highly offensive workplace conduct and ranked Wintermute thirty-ninth on the worst-bosses list. After Wintermute complained about the article, Adelman modified it but not to Wintermute's satisfaction.

Wintermute's lawsuit was filed within one year of the modified article's publication but outside the limitations period for the original article.

The trial court denied Adelman's summary judgment motion on statute-of-limitations grounds, finding that the single publication rule did not apply because the changes made to the original article constituted a second publication. The defamation action therefore was not time-barred. Nevertheless, the court granted summary judgment in favor of Adelman based on the fair report privilege because the modified article was a full, fair, and accurate report of a lawsuit filed against Wintermute. On that basis, the defamation lawsuit was dismissed.

The Appellate Division disagreed with the trial court's single-publication-rule analysis, concluding that the minor modifications to the second article did not transform the article into a second publication. Accordingly, the Appellate Division determined that the statute of limitations began to run when the original article was published and dismissed Wintermute's action as untimely.

We now hold that the single publication rule applies to an internet article. However, if a material and substantive change is made to the article's defamatory content, then the modified article will constitute a republication, restarting the statute of limitations. In the record before us, there are genuine issues of disputed fact concerning whether Adelman made a material and substantive change to the original article. We therefore conclude that the Appellate Division erred in dismissing the defamation action based on the single publication rule at the summary judgment stage.

We concur, however, with the trial court that the modified article is entitled to the protection of the fair report privilege. The article is a full, fair, and accurate recitation of a court-filed complaint. The trial court properly dismissed the defamation action, and on that basis we affirm the Appellate Division's judgment.

I.

A.

In addressing this appeal, we rely on the facts adduced in the summary judgment record.

Adelman established eBossWatch.com to provide job seekers with information about the work environment in certain companies and organizations. The website publishes an annual "America's Worst Bosses" list—a list compiled by "workplace experts" based on a methodology created by Adelman.

On August 3, 2010, the website published an article, drafted by an eBossWatch.com volunteer and edited by Adelman, entitled " ‘Bizarre’ and hostile work environment leads to lawsuit." The article details a gender-discrimination, workplace-harassment, and retaliation lawsuit brought against Wintermute by a former employee, Kristin Laforgia. The 2010 edition of "America's Worst Bosses"—published on December 15, 2010—ranked John Wintermute as number thirty-nine on the list of the one-hundred worst bosses. A hyperlink attached to Wintermute's name brought readers to the article.

The article summarized and quoted portions of Laforgia's eleven-page complaint. We recite only parts of the article here. The article described Wintermute as, among other things, "a violent bully, a racist, and a womanizer" who regularly used profanity and referred to women in the most vulgar and degrading language. The article also described Wintermute as having "an explosive temper when drunk," and stated that he "had or attempted to have affairs with several of Petro[–Lubricant]'s female employees" and "threatened to kill [one female employee] when she ended their relationship." Additionally, the article repeated Laforgia's allegation that she was fired because she refused to lie for the company when a retaliation lawsuit was brought by a former female employee. Of particular significance to the present appeal, the article indicated that Wintermute "allegedly forced workers to listen to and read white supremacist materials."

More than one year later—on December 22, 2011—Wintermute's attorney sent a letter to Adelman, contending that the article was false and defamatory, that Laforgia's complaint was baseless, and that Laforgia and Wintermute had settled the lawsuit. The letter demanded the removal of Wintermute's name from the worst-bosses list and the article from the website and threatened legal action if Adelman did not comply.

In an email response, Adelman defended the article, stating that it contained no factual misstatements and was "clearly a reporting of [Laforgia's] complaint." Adelman, moreover, asserted that ranking Wintermute on the list of the one-hundred worst bosses was clearly an expression of opinion protected by the First Amendment. Nevertheless, Adelman indicated that he "made some minor changes to the wording" of the article and its title "to make it even more clear that [the] article is a factual reporting of [Laforgia's] complaint."

Adelman provided a link to the modified article, entitled "Hostile Work Environment Lawsuit Filed Against Petro–Lubricant Testing Laboratories," which was posted in December 2011.¹ The modified article retained the original date of the article's publication. A number of changes were made to the article, some seemingly minor. In addition to altering the article's title, Adelman removed a photograph of Petro–Lubricant's sign from the article and changed some wording in the body of the article. For example, while the original article stated that Laforgia claimed Wintermute is "a violent, raging drunk," the modified article stated that Laforgia claimed he is "a ‘dangerous and violent alcoholic.’ "

The most significant change for purposes of this appeal is the replacement of, "[Wintermute] also allegedly forced workers to listen to and read white supremacist materials," with "John Wintermute also allegedly regularly subjected his employees to ‘anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants,’ " quoting from Laforgia's complaint.

Adelman continued to rank Wintermute as number thirty-nine on eBossWatch.com's worst-bosses list, and a hyperlink to his name connected readers to the modified article.

B.

Unsatisfied with Adelman's response, plaintiffs filed the present defamation action. Adelman moved for summary judgment, contending that the statute of limitations and fair report privilege barred the lawsuit. Ultimately, the trial court concluded that the defamation claims relating to the publication of the original article and the worst-bosses list were time-barred. The court came to a different conclusion concerning the modified article. The court found that because of alterations to the original article, the single publication rule did not apply, and therefore the limitations period had not expired on the modified article. Nevertheless, in the end, the court held that the modified article fell within the ambit of the fair report privilege and dismissed the...