Page 17 - November 2019 BarJournal

BUSINESS LITAGATION FEATURE

DEFAMATION CLAIMS

IN TODAY’S WORLD OF SOCIAL MEDIA

BY ERIC J. WEISS

n today’s world of social media, “continuing tort theory.” Instead, the statute continued to disseminate these statements
knowledge of both the substantive and of limitations commences on the earliest on her social media pages, the limitations
procedural aspects of defamation claims date the allegedly defamatory statements are period is not restarted each time the
under Ohio law is particularly useful. For published. This is commonly referred to as statements are re-published to a new party.
Ithose practitioners that do not routinely the “single publication rule.” In other words, the Spitzer Court expressly
litigate defamation claims, such claims can Ohio courts have consistently rejected declined to adopt the plaintiff’s “continuing
present various pitfalls that can quickly derail efforts to restart the statute of limitations publication” or “continuing tort” theory.
your case. This article will touch on two of these in a defamation action where the alleged Therefore, practitioners will be well-
topics that are pertinent to today’s social media. defamatory information remained pub- served to determine as soon as possible when
lished for a lengthy period of time or is the defamatory statement at issue was first
The Single-Publication Rule and the Statute subsequently re-published/re-transmitted
of Limitations to new recipients. See, e.g., Spitzer v. Knapp,
Ohio’s “single-publication rule” for 2019 Ohio 2770 (5th Dist.); Krowiak v.
defamation claims is a particularly relevant BWXT Nuclear Operations
topic, especially for litigators. As we all Group, Inc., N.D.Ohio
know from our own use of Facebook, No. 1:18 CV 629, 2018
Twitter, and internet blogs, information WL 5312463, *6.
of all kinds (statements, articles, photos, A recent decision
videos, etc.) is routinely published on social by the Fifth Appellate
media platforms, and often remains on that District illustrates the
social media platform for lengths of time. significance of this rule.
That same information is often-times later In Spitzer v. Knapp, 2019
re-published again on that same platform Ohio 2770 (5th Dist.),
or on another platform. Ohio’s single- the plaintiff filed suit in
publication rule addresses the impact that Sept 2017 alleging among
the continued publication and re-publication other things, defamation.
of such defamatory statements has on the The plaintiff alleged that
statute of limitations for defamation claims. the defendant published false
R.C. §2305.11(A) establishes the statements against him within
limitations period for the commencement the last 12 months, including
of an action for defamation and requires on her social media pages. The
that such actions be commenced within one statements at issue alleged, among published (on any social media platform)
year after the cause of the action accrues. For other things, that the plaintiff engaged in and if it has been subsequently re-published.
purposes of defamation, a cause of action criminal conduct. The record revealed that Otherwise, the single publication rule
accrues upon the date of the publication of the five alleged defamatory statements came could present a significant hurdle to timely
the defamatory matter. Stated another way, directly from the defendant’s blog dated commencing suit on behalf of your client.
the statute begins to run at the time the October of 2015, and the plaintiff failed to
alleged defamatory statement was made. presented any evidence that the statements The Innocent Construction Rule &
Of particular importance is that the date of had been altered since that initial publication Defamation Per Quod
publication (and not the discovery thereof) in 2015. Based on this, the trial court granted Ohio’s “innocent construction rule” is
is the time of accrual of such action. summary judgment to the defendant finding another topic that is particularly relevant
Implicit in this rule of law is that the right that the defamation claims were time-barred for defamation claims in today’s world.
to file suit for defamation accrues only upon by Ohio’s one-year statute of limitations. Most users of social media are savvy enough
the first publication of the complained of On appeal, the Fifth Appellate District to avoid publishing information that is
statement. In other words, Ohio law does affirmed the dismissal. In doing so, the objectively defamatory on its face. While
not support a “re-publication theory” or a Spitzer Court held that even if the defendant it does happen, it is not typically the type

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