Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the “single publication rule,” which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff’s damages, but does not re-start the running of the statute of limitations or create new causes of action.
A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of “blatant incompetence and lying” and of having “a history of messing up cases.” Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.
At first, Westlake obtained a default judgment. The summons and complaint had been served on CT Systems, a registered-agent service, and Yelp had not responded to the lawsuit. CT Systems, it turned out, was not Yelp’s registered agent. Yelp uses National Registered Agents, Inc., as its registered agent to accept service of lawsuits, a company that apparently shares office space with CT Systems. CT Systems refused to accept service (since Yelp was not its customer) and returned the suit papers to Westlake. Still, because CT Systems was NRAI’s registered agent, Westlake moved for, and was initially granted, a default judgment.
Yelp first learned of the lawsuit when it received a summons to answer debtor’s interrogatories – a post-judgment collection device used by judgment creditors to identify assets that might be used to satisfy judgments. Yelp moved to vacate the default judgment and removed the action to federal court. After denying Westlake’s motion to remand, the court ruled not only that the default judgment should be set aside, but that the entire case should be dismissed. The court noted that Virginia adheres to a one-year statute of limitations for defamation claims, and that Westlake’s lawsuit was filed almost three years after the Yelp review in question. The court explicitly rejected Westlake’s argument that the Yelp review was a “continuing tort” that extended the limitations period with each new click.
In dicta, the court also noted that Section 230(c) of the Communications Decency Act would have barred Westlake’s claim against Yelp, even if it weren’t barred by the passage of time. Yelp is an “interactive computer service” as defined in the CDA and was not the publisher of the review claimed to be defamatory.