How Republication Doctrine Affects Single-Publication Rule

Under the single-publication rule, a defamatory statement posted online will be treated as a single publication, made at the time of posting, regardless of when and how many people actually view the content. Without such a rule, Virginia’s one-year statute of limitations would be rendered meaningless, because a new cause of action would arise each time a new person clicked a link leading to defamatory content, even if that were to occur 10 or 20 years from the date the material was originally uploaded. At the same time, however, Virginia law imposes liability against those who “republish” a defamatory statement, even if republication occurs after the statute of limitations has run on the original statement. When pursuing libel remedies for a statement uploaded to the internet over a year ago, consider whether the statement has been republished by anyone within the past 12 months.

This approach was tried, albeit without success, by the plaintiff in Svetlana Lokhova v. Stefan A. Halper. Ms. Lokhova is a Russian-born British historian and author whose work has focused on the Soviet intelligence service. She had some contact with former National Security Adviser Michael Flynn back in 2014–minimal contact, according to the complaint. She says she met him briefly at a dinner in England and exchanged only a few emails afterwards. Various press accounts in 2017 noted that certain individuals had expressed concern upon learning that the head of the Defense Intelligence Agency appeared to have a friendly relationship with a Russian woman with alleged ties to Russian intelligence–surmising among other things that such a connection could make Flynn susceptible to extortion. One example cited in the complaint is this passage from a New York Times article:

The informant also had contacts with Mr. Flynn, the retired Army general who was Mr. Trump’s first national security adviser. The two met in February 2014, when Mr. Flynn was running the Defense Intelligence Agency and attended the Cambridge Intelligence Seminar, an academic forum for former spies and researchers that meets a few times a year. According to people familiar with Mr. Flynn’s visit to the intelligence seminar, the source was alarmed by the general’s apparent closeness with a Russian woman who was also in attendance. The concern was strong enough that it prompted another person to pass on a warning to the American authorities that Mr. Flynn could be compromised by Russian intelligence, according to two people familiar with the matter.

Lokhova hired defamation lawyer Steven Biss (the same attorney representing California congressman Devin Nunes in his Virginia defamation suits) and sued The New York Times, the Wall Street Journal, the Washington Post and others, asking the court to award her over $25 million in damages. The lawsuit was not filed, however, until May 2019, roughly two years after the initial media reports. The central issue on the defendants’ motion to dismiss became whether Lokhova’s claims were time-barred by the statute of limitations.

Defamation claims generally accrue on the date of publication. Under the general rule then, Lokhova could not base any defamation claim on any statement contained in an article originally published prior to May 23, 2018 (one year prior to the date she filed her lawsuit). What Lokhova argued to the court, however, was that the statute of limitations presented no bar to her claims in light of the many hyperlinks, tweets, retweets and other references to the original articles, that have been made within the 12-month period prior to the date she filed twitter-292994_960_720-300x200suit. In other words, she took the position that a new one-year period began with each republication of the allegedly defamatory statements about her.

Enter the single-publication rule. A single publication can only result in a single defamation claim under this rule, regardless of how many people are exposed to the statement in the future. (See Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 918 (E.D. Va. 2004)). If you write a defamatory book, you can only get sued for it one year after the book is published; it doesn’t matter how many people share the book with others after the year has passed.

Under the republication doctrine, “where the same defamer communicates a defamatory statement on several different occasions to the same or different audience, each of those statements constitutes a separate publication” triggering a new statute of limitations. (See Doe v. Roe, 295 F. Supp. 3d 664, 670-71 (E.D. Va. 2018)). Republication isn’t limited to the original defamer; a third person who repeats and endorses a defamatory statement can be held liable for the republication. (See Lee v. Dong–A Ilbo, 849 F.2d 876, 878 (4th Cir. 1988)). Some courts treat the doctrine as an exception to the single-publication rule, whereas others view it as the result of drawing a distinction between the original and subsequent “publications.” Republication of internet content generally requires more than just a retweet; courts look to see whether the statement has been “substantively altered or added to, or…directed to a new audience.” (See Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 879 (W.D. Va. 2016)).

The court rejected Lokhova’s argument that the various hyperlinks and retweets amounted to republication sufficient to extend to statute of limitations.

The New York Times posted an online article in April 2019 in which it linked to its allegedly defamatory May 18th article quoted above. Like a retweet, this was not enough. The republication doctrine does not apply when a hyperlink merely directs the reader’s attention to an earlier publication, as there is no apparent intent or ability to extend the reach of the original iteration to wider audience. Most courts have held that linking to previously published material is akin to releasing an additional copy of the same edition of a book: it’s not republication because it does not alter the substance of the original publication. The result here might have been different had the NYT quoted extensively from the earlier argument, essentially restating the material, but in this case it didn’t do that.

Regarding Lokhova’s attempt to rely on third-party tweets and retweets to get around the statute of limitations, the court held that it made no sense to find republication considering the articles were already on the internet. Merely sharing an article with others does not amount to republication; it’s more like copying a chapter in a hard-copy book and sharing the paper copy with others. The audience may widen, but it’s still just a single publication. “Adopting Lokhova’s argument with respect to the media defendants, in the age of the internet, would violate the single publication rule, render the statute of limitations meaningless, and undermine First Amendment protections of the press,” the court concluded.

The Lokhova decision was eventually affirmed on appeal by the Fourth Circuit.

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