Wolsfelt v. Gloucester Times

• Decision Date: 01 September 2020
• Docket Number: No. 19-P-936,19-P-936
• Parties: Robert WOLSFELT v. GLOUCESTER TIMES.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 321

155 N.E.3d 737

Robert WOLSFELT

v.GLOUCESTER TIMES.

No. 19-P-936

Appeals Court of Massachusetts, Essex..

Argued May 8, 2020.

Decided September 1, 2020.

Steven C. Goldwyn, Cambridge, for the plaintiff.

Jonathan M. Albano, Boston, for the defendant.

Present: Singh, Wendlandt, & McDonough, JJ.¹

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 statement. See Flynn v. Associated Press, 401 Mass. 776, 780, 519 N.E.2d 1304 (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.

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 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 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 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, 571 N.E.2d 357 (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, 575 N.E.2d 734 (1991). Where the nonmovant bears the burden of proof at 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, 136 N.E.3d 719 (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, 974 N.E.2d 34 (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, 7 N.E.3d 449 (2014), quoting Flynn, 401 Mass. at 780, 519 N.E.2d 1304. 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, 57 N.E.3d 947 (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 "has the burden of establishing facts that take him outside the statutory three-year limitations period." Harrington, 467 Mass. at 725, 7 N.E.3d 449.

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, 5 N.E. 144 (1886) ("all the several deliveries [of the defamatory pamphlet] made by [the defendant] were to be treated as substantiating the allegation of a [single] publication.... [F]or, if each delivery of a copy is to be dealt...