Under the current statute, suits in Virginia for libel, slander, or “insulting words” can only be brought within one year from the time of publication. Earlier this month, delegate Dave Albo filed House Bill No. 1635, proposing that the Commonwealth increase the limitations period to two years, and providing further that in cases involving Internet defamation by anonymous tortfeasors, the statute of limitations be suspended (or “tolled”) upon a motion and showing of good cause. If the bill passes, it will make it a lot easier to identify and bring to justice those persons who use the Internet to conceal their identities while unleashing a barrage of false and harmful statements about another individual or business.
Statutes of limitation have been debated for hundreds of years. In a law review article written over 100 years ago, Oliver Wendell Holmes, Jr. asked, “what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” In other words, why have statutes of limitation at all? Shouldn’t every wrong have a remedy? There are some who feel that claims should be resolved on their merits regardless of when they are brought, whereas others argue that untimely claims should be forever extinguished. Most states have reached a consensus that defamation claims should be limited to one or two years, primarily due to concerns about First Amendment principles and a desire to avoid the chilling of free speech.
In deciding whether to extend the limitations period for defamation actions here in Virginia to two years, the General Assembly should consider the reasons statutes of limitation exist in the first place. The most common justification given for limiting the time within which an action must be filed is to protect parties from having to defend “stale” claims and to promote “repose.” The courts speak of the benefits of allowing peace of mind and reducing uncertainty after a certain length of time. The thinking is that it is unfair to subject an individual–even a wrongdoer–to a constant and never-ending fear of being sued, and that at some point, the slate should be wiped clean.
Another major reason statutes of limitation exist is to preserve evidence. Memories fade over time and documents get lost. Requiring prompt resolution of disputes generally allows for greater accuracy in fact-finding, reduces discovery costs, and discourages fraudulent claims.
To me, increasing the limitations period to two years and adding a tolling provision seems reasonable, particularly in light of the abundance of claims involving Internet defamation. The Internet makes it easy for tortfeasors with a little bit of technical know-how to conceal their identities and cover their tracks using special browsers, virtual private networks, and proxies. In most cases, when a person makes a defamatory statement online using a fake name, a skilled lawyer will eventually be able to uncover that person’s identity through litigation and the use of subpoenas. But if the defendant took a few extra steps to preserve his or her anonymity, it can be extremely difficult to ascertain that person’s identity within 12 months, even when armed with subpoenas and other discovery devices.
Under the current one-year statute of limitations, a person who succeeds in concealing his identity for one year after posting a defamatory statement can effectively escape liability forever. Virginia courts (both state and federal) have found that merely filing a John Doe action against an unknown defendant will not toll the statute of limitations, and that the defendant must be named within the applicable limitations period or the claim will be extinguished.
Another factor weighing in favor of increasing the limitations period is the reality that with so many sources of online publication these days, and with Google Alerts not being as reliable as one would hope, it is very common to remain unaware of nasty comments made about you or your business online and and not learn of them until after a year has passed. Extending the period to two years would increase the likelihood that a person who has been defamed online will actually learn of the defamation in time to do something about it.