Wolsfelt v. Gloucester Times

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19-P-936                                            Appeals Court

             ROBERT WOLSFELT    vs.   GLOUCESTER TIMES.


                            No. 19-P-936.

            Essex.     May 8, 2020. - September 1, 2020.

           Present:   Singh, Wendlandt, & McDonough, JJ. 1


Libel and Slander. Newspaper. Internet. Limitations, Statute
     of. Practice, Civil, Summary judgment, Statute of
     limitations.



     Civil action commenced in the Superior Court Department on
June 12, 2015.

     The case was heard by Shannon Frison, J., on a motion for
summary judgment.


     Steven C. Goldwyn for the plaintiff.
     Jonathan M. Albano for the defendant.


     WENDLANDT, J.    In libel cases, the general rule is that the

cause of action accrues, and the statute of limitations begins

to run, on the date of the publication of the alleged defamatory


     1 Justice McDonough participated in the deliberation on this
case while an Associate Justice of this court, prior to his
reappointment as an Associate Justice of the Superior Court.
                                                                     2


statement.     See Flynn v. Associated Press, 401 Mass. 776, 780

(1988).     In this appeal, we apply the statute of limitations to

a defamatory statement posted on a newspaper's website.     We hold

that such Internet postings are subject to the single

publication rule, which governs other types of aggregate

communications.     Under the rule, a person may bring one (and

only one) cause of action for defamation against the publisher

based on its publication of the defamatory statement.     The

statute of limitations for the action begins to accrue when the

statement first is posted on the website.     We also hold that

where (as here) the website is widely and publicly available and

not maintained confidential, the discovery rule does not apply.

Applying these principles to the defamatory articles in this

case, we conclude that the plaintiff's claim is time barred as

to the first publication.     With regard to the second

publication, the alleged defamatory statements about the

plaintiff's arrest are governed by the fair report privilege.

Accordingly, we affirm the allowance of summary judgment in

favor of the defendant.

     Background.    The plaintiff, Robert Wolsfelt, brought claims

against the defendant, Gloucester Times, for its defamatory

articles.    The articles concern two separate incidents of

domestic violence, each of which resulted in Wolsfelt's arrest.
                                                                      3


     Article one.     The first incident occurred on November 30,

2011. 2    The Gloucester Police Department received a 911 call from

Wolsfelt who claimed he was injured after his fiancée pushed him

down the stairs.     En route to the scene, the officers were

notified that the fiancée had also called the police, stating

that she had locked herself in the bathroom in fear of Wolsfelt.

After the officers arrived, the fiancée told the officers that

Wolsfelt called her earlier from a bar where he had been

drinking; she told him not to return home.     Nonetheless,

Wolsfelt (in an intoxicated state) returned home.     He rummaged

through her pocketbook, and when she told him to stop, he

grabbed her by the throat.     Officers noticed that she had red

marks on her neck.     She pushed him, causing him to fall down the

stairs. 3

     Wolsfelt was transported to a hospital where he relayed a

different version of the events.     He stated that while

retrieving his computer, his fiancée pushed him down the stairs.

In response to questions regarding the red marks on his

fiancée's neck, Wolsfelt posited that the marks may have been

left when the fiancée was wrestling with her children.        After

Wolsfelt was released from the hospital, he was arrested and


     2 We recite the facts as set forth in the police reports for
each arrest.
     3    The fiancée did not seek a restraining order.
                                                                  4


charged with domestic assault and battery.    On the same day,

Gloucester Times published an article online regarding this

incident (article one).    Article one, entitled "Gloucester

Police/Fire:    City man charged in domestic assault," largely

tracked the police report.

     On February 17, 2012, a "general continuance" with a "no

abuse" order was entered in Wolsfelt's criminal case. 4

Gloucester Times updated article one on its website, stating

"[t]he charge of assault and battery brought against Robert

Wolsfeld [sic] was continued without a finding on Feb. 17, 2012"

(article one update).     The article one update appeared above the

original article one, which was set forth in full on the same

page.

     Article two.    The second incident occurred less than one

year later, during the late hours of June 7, 2012.    The

Gloucester Police Department received a 911 call from the

fiancée, alleging that Wolsfelt was attempting to harm her, and

that knives were present in the area.    En route to the scene,

the officers received a call from Wolsfelt and directed him to

remain outside.    When the officers arrived at the scene,

Wolsfelt was sitting outside of the residence, apparently

intoxicated.    He stated that he had an argument with his



     4   The charge was dismissed on May 18, 2012.
                                                                   5


fiancée, and when she called the police, he tried to take the

telephone from her.   Wolsfelt admitted that, during the ensuing

fight, he pushed her.    His fiancée was also interviewed by the

officers; she reiterated Wolsfelt's account, providing a few

more details.    Wolsfelt was arrested and charged with, inter

alia, domestic assault and battery.    On June 8, 2012, Gloucester

Times published an article online regarding this incident

(article two).   Article two, entitled "Gloucester Police/Fire:

Lanesville man charged in domestic assault," largely tracked the

police report.

    On February 19, 2013, Wolsfelt admitted to sufficient

facts, and a continuance without a finding (CWOF) was entered.5

Gloucester Times posted an update to article two, stating "[t]he

charge of assault and battery brought against Robert Wolsfeld

[sic] was continued without a finding for 18 months on Feb. 19,

2013" (article two update).   The article two update appeared at

the top of the webpage, just above article two, which was set

forth in full.

    Wolsfelt's discovery of the articles.    Wolsfelt did not

learn about the articles until February 2013, when he applied

for a job.   On June 12, 2015, Wolsfelt brought an action against

Gloucester Times for defamation and injunctive relief seeking




    5   The charge was dismissed on August 19, 2014.
                                                                    6


removal of the two articles, along with their respective

updates.     He asserted that the articles contained "untrue,

incomplete, misleading[,] and damaging assertions," resulting in

harm that included loss of reputation and potential employment.

The filing date of the complaint was more than three years after

article one, the article one update, and article two first were

posted online; however, it was less than three years after the

publication of the article two update.     Gloucester Times moved

for summary judgment, which a Superior Court judge allowed on

the basis that Wolsfelt's claims were time-barred and, in any

event, the articles were protected under the fair report

privilege.

    Discussion.     "The standard of review of a grant of summary

judgment is whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law."    Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824

(1974).    Summary judgment "make[s] possible the prompt

disposition of controversies on their merits without a trial, if

in essence there is no real dispute as to the salient facts or

if only a question of law is involved" (citation

omitted).    Kourouvacilis v. General Motors Corp., 410 Mass. 706,

715 (1991).    Where the nonmovant bears the burden of proof at
                                                                      7


trial, the moving party "is entitled to summary judgment if [it]

demonstrates . . . that [the nonmovant] has no reasonable

expectation of proving an essential element of [his] case"

(citation omitted).   Butcher v. University of Mass., 483 Mass.

742, 747 (2019), cert. denied sub nom. Butcher v. Vishniac,

S. Ct.    (2020).   Our review is de novo.   See LeBlanc v. Logan

Hilton Joint Venture, 463 Mass. 316, 318 (2012).

    1.    Statute of limitations.   We turn first to the question

whether Wolsfelt's complaint for defamation was filed within the

statute of limitations.    An action for defamation must be

commenced within three years after the cause of action accrues.

G. L. c. 260, § 4.    "In defamation cases, 'the general rule is

that the cause of action accrues, and the statute of limitations

begins to run, on publication of the defamatory statement.'       A

statement is published when it is communicated to a third

party."   Harrington v. Costello, 467 Mass. 720, 725 (2014),

quoting Flynn, 401 Mass. at 780.    Where a defendant raises the

statute of limitations as an affirmative defense, the plaintiff

bears the burden of proving the action was timely

commenced.   Parr v. Rosenthal, 475 Mass. 368, 376 (2016).

    a.    Article one and update.   With regard to article one and

the article one update, Wolsfelt filed his complaint more than

three years after publication of the alleged defamatory

statements on the defendant's website.    Accordingly, Wolsfelt
                                                                     8


"has the burden of establishing facts that take him outside the

statutory three-year limitations period."     Harrington, 467 Mass.

at 725.

    i.      Single publication rule.   Wolsfelt first appears to

argue that each time a third party accessed the website on which

article one and its update were posted, a new communication

occurs, and thus the statute of limitations has not run so long

as article one and its update "remain[] on the Internet."

Concluding that the single publication rule applies, we

disagree.

    Under the common law, each separate communication of a

defamatory statement to a third party gave rise to a new cause

of action.     See Restatement (Second) of Torts § 577A(1) (1977).

The single publication rule addresses the treatment of an

aggregate communication of a defamatory statement as occurs

when, for example, a statement is made to a crowd, broadcast by

television or radio, or printed in a newspaper or book.      Under

the rule, the publication of a defamatory statement in this

aggregate manner is, in legal effect, one publication, although

such publication is received by multiple third parties at the

same time or consists of many copies widely distributed.

See Bigelow v. Sprague, 140 Mass. 425, 427-428 (1886) ("all the

several deliveries [of the defamatory pamphlet] made by [the

defendant] were to be treated as substantiating the allegation
                                                                    9


of a [single] publication. . . .   [F]or, if each delivery of a

copy is to be dealt with only[,] and for all purposes[,] as a

separate publication, courts could not distinguish between

publication in a newspaper and in a private letter.    A closer

analogy . . . would seem to be that of an oral slander addressed

to a crowd"). 6

     Rather than each copy giving rise to a separate cause of

action, the single publication rule treats the aggregate

communication as one publication that gives rise to one and only

one cause of action.    See Restatement (Second) of Torts

§ 577A(4).    The statute of limitations for the single action

runs from the point at which the original dissemination

occurred.    See Flynn, 401 Mass. at 780 (in libel cases, statute

of limitations begins to run on date of publication).7

     The single publication rule is founded on two

considerations.    First, "[t]he rule is justified by the

necessity of protecting defendants and the courts from the

numerous suits that might be brought for the same words if each

person reached by such a large-scale communication could serve


     6 See also Restatement (Second) of Torts § 577A(3), at 208
("Any one edition of a book or newspaper, or any one radio or
television broadcast, exhibition of a motion picture or similar
aggregate communication is a single publication").

     7 See also Firth v. State, 98 N.Y.2d 365, 369 (2002) (under
single publication rule, statute of limitations runs from date
of first publication).
                                                                  10


as the foundation for a new action."    Restatement (Second) of

Torts § 577A comment c, at 209. 8   A contrary rule -- one that

would permit a new cause of action for each third party who

receives the communication to restart the limitations period --

would thwart the repose intended by the Legislature in

establishing a statute of limitations in the first place.

See Firth v. State, 98 N.Y.2d 365, 369 (2002).

     Second, the single publication rule inures to the benefit

of the allegedly defamed party, who may recover all damages

stemming from the multiple copies of the publication in the one

action.   See Bigelow, 140 Mass. at 427 ("when a libel is printed

in an edition of many copies for general circulation, the extent

of the circulation procured or caused by the publisher may be

shown against him as evidence of the injury to the person

libeled").   See also Firth, 98 N.Y.2d at 370 ("the single

publication rule actually reduces the possibility of hardship to

plaintiffs by allowing the collection of all damages in one case

commenced in a single jurisdiction").

     These considerations counsel in favor of applying the

single publication rule to Internet publications.    The Internet


     8 See Christoff v. Nestlé USA, Inc., 47 Cal. 4th 468, 478
(2009) (common-law multiple publications rule "had the potential
to subject the publishers of books and newspapers to lawsuits
stating hundreds, thousands, or even millions of causes of
action for a single issue of a periodical or edition of a book"
[citation omitted]).
                                                                    11


(when coupled with a robust search engine) comprises a platform

for instantaneous, worldwide communications to a multitude of

readers across geographies, often for an indefinite period of

time.   See Firth, 98 N.Y.2d at 370, citing Reno v. American Civ.

Liberties Union, 521 U.S. 844, 853 (1997) (policies impelling

original adoption of single publication rule "are even more

cogent when considered in connection with the exponential growth

of the instantaneous, worldwide ability to communicate through

the Internet").   Permitting a separate cause of action for each

"hit" or viewing of defamatory statement by a third party on the

Internet "would implicate an even greater potential for endless

retriggering of the statute of limitations, multiplicity of

suits and harassment of defendants.    Inevitably, there would be

a serious inhibitory effect on the open, pervasive dissemination

of information and ideas over the Internet, which is, of course,

its greatest beneficial promise."     Firth, supra.   See Pippen

v. NBCUniversal Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013)

("excluding the Internet from the single-publication rule would

eviscerate the statute of limitations and expose online

publishers to potentially limitless liability").      At the same

time, the single publication rule permits a plaintiff to

recover, in one suit, all damages stemming from the allegedly

defamatory statement instead of filing separate suits each time
                                                                 12


a third party accesses the webpage containing the defamatory

content.   See Bigelow, 140 Mass. at 427; Firth, supra.

     For these reasons, "[e]very state court that has considered

the question applies the single-publication rule to information

online."   Pippen, 734 F.3d at 615, citing Christoff v. Nestlé

USA, Inc., 47 Cal. 4th 468 (2009); Churchill v. State, 378 N.J.

Super. 471 (App. Div. 2005); Woodhull v. Meinel, 145 N.M. 533

(App. 2008); Firth, 98 N.Y.2d 365; T.S. v. Plain Dealer, 194

Ohio App. 3d 30 (2011); Kaufman v. Islamic Soc'y of Arlington,

291 S.W.3d 130 (Tex. App. 2009); Ladd v. Uecker, 323 Wis. 2d 798

(App. 2010). 9    Additionally, Federal courts considering the

question have concluded that the relevant State supreme court

would agree. 10   Accordingly, we now join those jurisdictions and


     9 See Simon v. Arizona Bd. of Regents, 28 Media L. Rep.
(BNA) 1240 (Ariz. Super. Ct. 1999); Traditional Cat Ass'n v.
Gilbreath, 118 Cal. App. 4th 392 (2004); McCandliss v. Cox
Enters., Inc., 265 Ga. App. 377 (2004), overruled on other
grounds by Infinite Energy, Inc. v. Pardue, 310 Ga. App. 355,
363 (2011).
     10See Pippen, 734 F.3d at 615, citing Shepard v.
TheHuffingtonPost.com, Inc., 509 Fed. Appx. 556 (8th Cir. 2013)
(Minnesota law); In re Philadelphia Newspapers, LLC, 690 F.3d
161, 174–175 (3d Cir. 2012) (Pennsylvania law). See also
Kiebala v. Boris, 928 F.3d 680, 686 (7th Cir. 2019) (Illinois
law); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d
137, 146 (5th Cir. 2007) (Texas law); Jankovic v. International
Crisis Group, 494 F.3d 1080, 1087 (D.C. Cir. 2007) (District of
Columbia law); Van Buskirk v. New York Times Co., 325 F.3d 87,
89-90 (2d Cir. 2003) (New York law); Lane v. Strang
Communications Co., 297 F.Supp. 2d 897 (N.D. Miss. 2003)
(Mississippi law); Mitan v. Davis, 243 F.Supp. 2d 719 (W.D. Ky.
2003) (Kentucky law).
                                                                   13


extend the single publication rule to articles posted to an

online media's publicly available website.11

     ii.   Discovery rule.   Wolsfelt next argues that the

discovery rule tolled the statute of limitations for article one

and its update because he did not learn about the publications

until February 2013, when he applied for a job.    The discovery

rule tolls the statute of limitations period for certain causes

of action such that the action does not "accrue" (and hence the

limitations does not start) until "the plaintiff learns, or

reasonably should have learned, that he has been harmed by the

defendant's conduct" (citation omitted).    Flynn, 401 Mass. at

781 (collecting cases).   The rule "applies only to 'inherently

unknowable' causes of action."   Id., quoting White v. Peabody

Constr. Co., 386 Mass. 121, 130 (1982).    By contrast, where an

alleged defamatory publication is broadly circulated to the

public, and did not involve concealment or confidential

communications, the discovery rule does not apply.




     11Wolsfelt cites to no authority declining to extend the
single publication rule to Internet publications; and the only
case we have located declining to apply the single publication
rule to an Internet publication addressed a set of confidential
electronic communications with limited accessibility that was
different in kind from the type of mass communication presented
here. See Swafford v. Memphis Individual Practice Ass'n, Tenn.
Ct. App., No. 02A01-9612-CV-00311 (June 2, 1998) (where
defamatory statements from electronic database were
confidentially maintained and communicated only in response to
member request, single publication rule did not apply).
                                                                     14


See Harrington, 467 Mass. at 727 n.10; Flynn, supra at 781-782 &

n.7.    Thus, in Flynn, supra at 781, the court held that the

discovery rule does not toll the statute of limitations for

defamatory statements in a printed newspaper widely available to

the public.    See Fleury v. Harper & Row, Publs., Inc., 698 F.2d

1022, 1028 n.4 (9th Cir. 1983) (discovery rule inapplicable to

book publication announced in nationally distributed magazine

widely available to public as it was not confidential document

nor concealed).

       The same reasoning precludes application of the discovery

rule in the present case.    In particular, the record does not

establish that Wolsfelt's cause of action was inherently

unknowable on November 30, 2011, when article one published or

on February 17, 2012, when the update published.     Wolsfelt does

not allege that the article or the update were concealed or

confidential.     To the contrary, Wolsfelt admits that the article

and the update were publicly available on the Gloucester Times'

website and that a search engine query with his name produces

the article and update as a result.     Accordingly, Wolsfelt's

claims for defamation regarding article one and its update,

brought on June 12, 2015, are time barred.

       b.   Article two and update.   Wolsfelt argues that article

two, which was published on June 8, 2012, and was updated on

February 19, 2013, stands on different footing in light of the
                                                                    15


republication exception to the single publication rule.

Specifically, the single publication rule applies only to the

first release of a defamatory statement; under the republication

exception, "[a]ny future republication of the [alleged] false

statements . . . could form the basis for a new cause of action

against the republisher."    Flynn, 401 Mass. at 780 n.5.   Thus,

republishing material, editing and reissuing material, or

placing it in a new form that includes the defamatory material,

can create a new cause of action, which begins to run on the

date of republication.   See Restatement (Second) of Torts § 577A

comment d, at 210 ("the single publication rule . . . does not

include separate aggregate publications on different

occasions").    Wolsfelt contends that the article two update

acted as a republication of article two.   We need not decide

whether the placement of the article two update on the same

webpage and just above the text of article two republished

article two because, even assuming arguendo that it did, the

statements in article two fall within the fair report

privilege. 12


     12As courts in other jurisdictions have noted, the
application of the republication exception is complicated with
regard to Internet publications because many websites "are in a
constant state of change, with information posted sequentially
on a frequent basis." Firth, 98 N.Y.2d at 371. Application of
the republication exception to any change of a website would, in
the context of the Internet, foil the single publication rule,
"discourag[ing] the placement of information on the Internet or
                                                                16


    2.   Fair report privilege.   "The fair report privilege

establishes a safe harbor for those who report on statements and

actions so long as the statements or actions are official and so

long as the report about them is fair and accurate."   Howell

v. Enterprise Publ. Co., 455 Mass. 641, 651 (2010).




slow[ing] the exchange of such information, reducing the
Internet's unique advantages [and] . . . forc[ing a publisher]
either to avoid posting on a Web site or [to] use a separate
site for each new piece of information." Id. at 372. These
courts have held that minor or nonsubstantive changes to an
Internet posting do not fall within the republication exception,
but substantive changes may. Compare Kiebala v. Boris, 928 F.3d
680, 686-688 (7th Cir. 2019) (republication doctrine did not
apply where defendant did not change substance of original post
but only updated date on website); In re Philadelphia
Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012) (neither
hyperlink nor reference to defamatory material fell within
republication exception); Jankovic v. International Crisis
Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007) (online posting of
previously printed report without updating content did not fall
within republication exception); Canatella v. Van De Kamp, 486
F.3d 1128, 1135-1136 (9th Cir. 2007) (no republication where
defendant publishers changed Internet address of original post
containing defamatory statement but content remained unchanged);
Salyer v. Southern Poverty Law Ctr., Inc., 701 F.Supp. 2d 912,
916-917 (W.D. Ky. 2009) (website articles that referenced
original defamatory article did not fall within republication
exception because they merely called existence of article to
attention of new audience and did not present defamatory content
of article to audience); Firth, 98 N.Y.2d at 371 ("mere addition
of unrelated information to a Web site [that had a defamatory
statement as to which the statute of limitations has run] cannot
be equated with the repetition of defamatory matter in a
separately published edition of a book or newspaper . . . for it
is not reasonably inferable that the addition was made either
with the intent or the result of communicating the earlier and
separate defamatory information to a new audience"), with Yeager
v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012) (adding
substantive information regarding plaintiffs to website may
create new cause of action under republication exception).
                                                                    17


See Butcher, 483 Mass. at 750. (discussing history of fair

report privilege).      Where, as here, police undertake an official

response to a complaint, such as an arrest, both that response

and the allegations that gave rise to it fall within the

privilege.   See Jones v. Taibbi, 400 Mass. 786, 795 (1987) ("The

publication of the fact that one has been arrested, and upon

what accusation, is not actionable, if true" [citation

omitted]).   Wolsfelt does not contest that he was arrested as

reported by article two.     Nonetheless, he asserts that the

omission of certain details strips the article of the

protections afforded by the fair report privilege.

     "[A] report need give only a rough-and-ready summary that

was substantially correct in order to qualify for the fair

report privilege.    A statement is considered a fair report if

its gist or sting is true, that is, if it produces the same

effect on the mind of the recipient which the precise truth

would have produced" (quotations and citation omitted).     ELM

Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 783 (1989).

Article two tracks almost precisely the police report of

Wolsfelt's arrest. 13    Wolsfelt complains only that it left out

the detail that his lip was bleeding, that the fiancée later

accused him not only of shoving her but also of choking her, and


     13Wolsfelt does not claim the article two update was
defamatory.
                                                                      18


that Gloucester Times did not interview him to obtain "his side"

for the publication.     None of these affect the application of

the privilege; the gist and sting of article two is the same

without these details.    Wolsfelt, who was intoxicated at the

time, was arrested for assault and battery after his fiancée,

whom he admitted shoving, called the police.       Nothing more was

required to provide the "rough-and-ready summary" that is

protected by the fair report privilege.14    Id.

                                     Judgment affirmed.




     14Wolsfelt also contends that statements in article two
concerning separate incidents unrelated to Wolsfelt were
"prejudicial inaccuracies" and harmful because the article did
not indicate expressly that there were separate crimes,
unrelated to Wolsfelt. No reasonable reading of article two
fairly suggests that these distinct incidents, which are
expressly described as involving different occurrences at
different residences, concerned Wolsfelt. See New England
Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co.,
395 Mass. 471, 480 (1985).