The Virginia Defamation Law Blog
The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?
Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It’s not that she wasn’t arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an “erasure statute” which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed “erased” and the person’s arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.
On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information 
that a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested “after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house.” Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court’s analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)
The Second Circuit held that the erasure statute “creates legal fictions…it does not and cannot undo historical facts or convert once-true facts into falsehoods.” The news accounts were truthful when made and remain truthful to this day: Ms. Martin was arrested. That a statute deems her not to have been arrested does not change history and make an accurate statement suddenly become defamatory. Rather, the effect of the statute is to prohibit courts from relying on a defendant’s prior arrest record for such purposes as increasing a sentence for a later offense. In other words, the legislative intent was to treat as erased certain arrests in the context of the judicial and law enforcement systems, not to literally change history.
Martin realized there was a chance the court would find that the erasure statute was incapable of erasing historical truth, so she came with a backup theory: defamation by implication. Even if the articles were technically true, she argued, they only told part of the story and therefore gave readers an incomplete and inaccurate impression. The trouble with this argument, the court held, is that no reasonable reader could draw any untrue inference from the articles. While recognizing that a technically true statement can sometimes be so constructed as to carry a false and defamatory meaning by implication or innuendo, this was not such a case because the news reports at issue did not imply any fact about Martin that was not true.