Woodhull v. Meinel

• Citation: 2009 NMCA 015,202 P.3d 126
• Decision Date: 24 October 2008
• Docket Number: No. 27,959.,27,959.
• Parties: Angela Victoria WOODHULL, Ph.D., Plaintiff-Appellant, v. Carolyn MEINEL, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

202 P.3d 126

2009 NMCA 015

Angela Victoria WOODHULL, Ph.D., Plaintiff-Appellant, v. Carolyn MEINEL, Defendant-Appellee.

No. 27,959.

Court of Appeals of New Mexico.

October 24, 2008.

Certiorari Denied, January 7, 2009, No. 31,463.

Angela Victoria Woodhull, Ph.D., Gainesville, FL, Pro Se Appellant.

Bannerman & Williams, PA, Bryan J. Davis, Albuquerque, NM, for Appellee.

OPINION

BUSTAMANTE, Judge.

{1} Angela V. Woodhull, Ph.D. (Plaintiff), acting pro se, appeals the trial court's grant of summary judgment in favor of Carolyn Meinel (Defendant). The trial court ruled that the applicable New Mexico statute of limitations and 47 U.S.C. § 230 (1998), the Communications Decency Act of 1996(CDA), both bar Plaintiff's defamation claim. Plaintiff's appeal presents the first opportunity for this Court to consider the statute of limitations and CDA as they relate to Internet-based defamation claims in New Mexico. We reverse the trial court's grant of summary judgment and remand.

{2} Plaintiff also appeals the trial court's decision on three other matters, including denial of her motion for summary judgment, denial of her motion to sanction defense counsel, and denial of her motion to amend her civil complaint. Defendant argues that, while her motion for summary judgment on the statute of limitations and CDA was properly granted, her motion for summary judgment on grounds that Plaintiff is not the real party in interest was improperly denied. We do not consider any of these matters because of procedural issues.

BACKGROUND

{3} Defendant operates the website http:// www.happyhacker.org. Plaintiff's defamation claim is based on two instances of Defendant's posting comments on her website about or relating to Plaintiff in a section entitled "It Sucks to Be Me." On October 14, 2003, Defendant posted an email message from Plaintiff entitled "Please contact me" and stating "I have a job for you." Just below the email message Defendant posted her own comments. Specifically, she stated that upon calling, Plaintiff knowingly solicited her to commit a federal crime by offering her the job of "breaking into a news web site that had written something unflattering about her."

{4} Approximately two years later, on January 6, 2006, Defendant made a second posting on her website titled "The worst of `It Sucks to Be Me,' 2005." The posting first recapped the 2003 incident described above, adding that even after Plaintiff was informed that she was requesting a criminal act, she nonetheless offered to pay for its performance. It went on to state that Defendant's only recourse against Plaintiff for her alleged unlawful request was "to make fun of her on this website."

{5} Defendant's 2006 posting also contained the content of an email exchange between Defendant and Mike Gimignani, a staff member at the Independent Florida Alligator (the Alligator), a student run newspaper at the University of Florida. In that exchange, Defendant asked Gimignani whether his newspaper's website (http://www.alligator. org) had information about Plaintiff that she "disliked." Gimignani's response contained details about a dispute between Plaintiff and the Alligator related to whether a play by Plaintiff featured "dancing penises and condoms." Defendant additionally commented that further research revealed that Plaintiff had "been on America's Funniest Home Videos" and "says she is proud to be known as Wedgie Woman."

{6} Defendant argues that summary judgment was proper because the statute of limitations has expired as to both postings by operation of New Mexico's so-called "single publication" rule. See NMSA 1978, § 41-7-1 (1955). Defendant further argues that the CDA immunizes her from liability because she is a "user or provider of an interactive computer service," and she merely posted information from another "information content provider."

STANDARD OF REVIEW

{7} Our review from a grant of summary judgment is de novo. Farmington Police Officers Ass'n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139 N.M. 750, 137 P.3d 1204. Where reasonable minds cannot differ as to an issue of material fact, the court may properly grant summary judgment. Martinez v. Metzgar, 97 N.M. 173, 174, 637 P.2d 1228, 1229 (1981). We are mindful that summary judgment is a "drastic remedial tool which demands the exercise of caution in its application," and we review the record in the light most favorable to support a trial on the merits. Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 231, 836 P.2d 1249, 1252 (Ct. App.1992).

DISCUSSION

Statute of Limitations and Single Publication Rule

{8} The statute of limitations for a defamation claim is three years and begins running at the point of publication. Fikes v. Furst, 2003-NMCA-006, ¶ 7, 133 N.M. 146, 61 P.3d 855, rev'd in part on other grounds, 2003-NMSC-033, ¶ 1, 134 N.M. 602, 81 P.3d 545. Information is generally considered "published" when it is made available to the public. Oja v. U.S. Army Corps of Eng'rs, 440 F.3d 1122, 1131 (9th Cir.2006). Plaintiff brought this cause of action in January 2007. Thus, her defamation claim for the December 2003 posting is clearly barred by the three-year statute of limitations.

{9} Defendant argues that Plaintiff's defamation claim for the 2006 posting is also time-barred based on New Mexico's single publication rule, which provides as follows:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

Section 41-7-1. Under this rule, multiple disseminations of the same content give rise to only one cause of action, and the statute of limitations runs from the point at which the original dissemination occurred. Defendant argues that the 2006 posting constituted a single publication relating back to her 2003 posting and that Plaintiff's cause of action for the 2006 incident is therefore also barred by the statute of limitations.

{10} We take this opportunity to adopt the majority position applying the rule to Internet publications. See Atkinson v. McLaughlin, 462 F.Supp.2d 1038, 1051-52 (D.N.D. 2006) (concluding that jurisdictions are "nearly unanimous" in their application of the single publication rule to the Internet). The traditional policy reasons behind the single publication rule support its application to the Internet.

{11} The single publication rule is designed "to protect the defendant[s] and the courts from a multiplicity of suits, an almost endless tolling of the statute of limitations, and diversity in applicable substantive law." Anselmi v. Denver Post, Inc., 552 F.2d 316, 321 n. 2 (10th Cir.1977). Absent this rule, publishers and the mass media would be subject to a multiplicity of claims leading to potential harassment, excessive liability, and draining of judicial resources. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). As with traditional mass media, content on a public website is broadly available and easily reproduced. It may be viewed by literally millions in a broad geographic area for an indefinite time period. See Reno v. ACLU, 521 U.S. 844, 853, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (recognizing that the Internet "constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers"). Thus, there is a similar if not greater need for the policy advanced by the single publication rule in the Internet realm.

{12} "Republication" is an exception to the single publication rule, giving rise to a new cause of action that restarts the statute of limitations. Firth v. State, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463, 466 (2002). Republication occurs upon "a separate aggregate publication from the original, on a different occasion, which is not merely a delayed circulation of the original edition." Id. (internal quotation marks and citation omitted). The justification for the exception is to allow redress when the republished material is intended to expand the scope of the original distribution. Id. As demonstrated by the cases considering the exception, the point at which Internet republication may occur depends heavily on the facts of each case.

{13} Updating a website with information unrelated to the originally alleged defamatory material is not sufficient to trigger the republication exception. In Firth, the defendant posted a report on its website which contained allegedly defamatory statements. Id. at 464. Although the claim was otherwise barred by the statute of limitations, the plaintiff argued that a republication occurred when the website was updated with new reports unrelated to the plaintiff. Id. at 466. In rejecting this argument, the court reasoned that "[t]he justification for the republication exception has no application . . . to the addition of unrelated material . . ., 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." Id.

{14} Similarly, mere technical modifications, as opposed to changes in the nature of the information itself, are insufficient to constitute republication. In Churchill v. State, a website had been modified by moving and altering a menu bar and a press release in a new section of the website, the effect of which was to make the offending material more prominent and more easily accessible. 378 N.J.Super. 471, 876 A.2d 311, 315 (Ct.App.Div.2005). Citing Firth, the court in Churchill reasoned that finding republication from such minor...