Woodhull v. Meinel

Certiorari Denied, January 7, 2009, No. 31,463

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-015

Filing Date: October 24, 2008

Docket No. 27,959

ANGELA VICTORIA WOODHULL, Ph.D.,

Plaintiff-Appellant,

v.

CAROLYN MEINEL,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Valerie M. Huling, District Judge

Angela Victoria Woodhull, Ph.D.
Gainesville, FL

Pro Se Appellant

Bannerman & Williams, PA
Bryan J. Davis
Albuquerque, NM

for Appellee

OPINION

BUSTAMANTE, Judge.

{1} Angela V. Woodhull, Ph.D. (Plaintiff), acting pro se, appeals the trial court’s grant
of summary judgment in favor of Carolyn Meinel (Defendant). The trial court ruled that the
applicable New Mexico statute of limitations and 47 U.S.C. § 230 (1998), the
Communications Decency Act of 1996 (CDA), both bar Plaintiff’s defamation claim.
Plaintiff’s appeal presents the first opportunity for this Court to consider the statute of
limitations and CDA as they relate to Internet-based defamation claims in New Mexico. We

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reverse the trial court’s grant of summary judgment and remand.
{2} Plaintiff also appeals the trial court’s decision on three other matters, including denial
of her motion for summary judgment, denial of her motion to sanction defense counsel, and
denial of her motion to amend her civil complaint. Defendant argues that, while her motion
for summary judgment on the statute of limitations and CDA was properly granted, her
motion for summary judgment on grounds that Plaintiff is not the real party in interest was
improperly denied. We do not consider any of these matters because of procedural issues.

BACKGROUND

{3} Defendant operates the website http://www.happyhacker.org. Plaintiff’s defamation
claim is based on two instances of Defendant’s posting comments on her website about or
relating to Plaintiff in a section entitled “It Sucks to Be Me.” On October 14, 2003,
Defendant posted an email message from Plaintiff entitled “Please contact me” and stating
“I have a job for you.” Just below the email message Defendant posted her own comments.
Specifically, she stated that upon calling, Plaintiff knowingly solicited her to commit a
federal crime by offering her the job of “breaking into a news web site that had written
something unflattering about her.”

{4} Approximately two years later, on January 6, 2006, Defendant made a second posting
on her website titled “The worst of ‘It Sucks to Be Me,’ 2005.” The posting first recapped
the 2003 incident described above, adding that even after Plaintiff was informed that she was
requesting a criminal act, she nonetheless offered to pay for its performance. It went on to
state that Defendant’s only recourse against Plaintiff for her alleged unlawful request was
“to make fun of her on this website.”

{5} Defendant’s 2006 posting also contained the content of an email exchange between
Defendant and Mike Gimignani, a staff member at the Independent Florida Alligator (the
Alligator), a student run newspaper at the University of Florida. In that exchange, Defendant
asked Gimignani whether his newspaper’s website (http://www.alligator.org) had
information about Plaintiff that she “disliked.” Gimignani’s response contained details
about a dispute between Plaintiff and the Alligator related to whether a play by Plaintiff
featured “dancing penises and condoms.” Defendant additionally commented that further
research revealed that Plaintiff had “been on America’s Funniest Home Videos” and “says
she is proud to be known as Wedgie Woman.”

{6} Defendant argues that summary judgment was proper because the statute of
limitations has expired as to both postings by operation of New Mexico’s so-called “single
publication” rule. See NMSA 1978, § 41-7-1 (1955). Defendant further argues that the
CDA immunizes her from liability because she is a “user or provider of an interactive
computer service,” and she merely posted information from another “information content
provider.”

STANDARD OF REVIEW

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{7} Our review from a grant of summary judgment is de novo. Farmington Police
Officers Ass’n v. City of Farmington, 2006-NMCA-077, ¶ 13, 139 N.M.750, 137 P.3d 1204.
Where reasonable minds cannot differ as to an issue of material fact, the court may properly
grant summary judgment. Martinez v. Metzgar, 97 N.M. 173, 174, 637 P.2d 1228, 1229
(1981). We are mindful that summary judgment is a “drastic remedial tool which demands
the exercise of caution in its application,” and we review the record in the light most
favorable to support a trial on the merits. Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228,
231, 836 P.2d 1249, 1252 (Ct. App. 1992).

DISCUSSION

Statute of Limitations and Single Publication Rule

{8} The statute of limitations for a defamation claim is three years and begins running
at the point of publication. Fikes v. Furst, 2003-NMCA-006, ¶ 7, 133 N.M. 146, 61 P.3d
855, rev’d in part on other grounds, 2003-NMSC-033, ¶ 1, 134 N.M. 602, 81 P.3d 545.
Information is generally considered “published” when it is made available to the public. Oja
v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1131 (9th Cir. 2006). Plaintiff brought this
cause of action in January 2007. Thus, her defamation claim for the December 2003 posting
is clearly barred by the three-year statute of limitations.

{9} Defendant argues that Plaintiff’s defamation claim for the 2006 posting is also time-
barred based on New Mexico’s single publication rule, which provides as follows:

No person shall have more than one cause of action for damages for libel or
slander or invasion of privacy or any other tort founded upon any single publication
or exhibition or utterance, such as any one edition of a newspaper or book or
magazine or any one presentation to an audience or any one broadcast over radio or
television or any one exhibition of a motion picture. Recovery in any action shall
include all damages for any such tort suffered by the plaintiff in all jurisdictions.

Section 41-7-1. Under this rule, multiple disseminations of the same content give rise to
only one cause of action, and the statute of limitations runs from the point at which the
original dissemination occurred. Defendant argues that the 2006 posting constituted a single
publication relating back to her 2003 posting and that Plaintiff’s cause of action for the 2006
incident is therefore also barred by the statute of limitations.

{10} We take this opportunity to adopt the majority position applying the rule to Internet
publications. See Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 1051-52 (D. N.D. 2006)
(concluding that jurisdictions are “nearly unanimous” in their application of the single
publication rule to the Internet). The traditional policy reasons behind the single publication
rule support its application to the Internet.

{11} The single publication rule is designed “to protect the defendant[s] and the courts

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from a multiplicity of suits, an almost endless tolling of the statute of limitations, and
diversity in applicable substantive law.” Anselmi v. Denver Post, Inc., 552 F.2d 316, 321
n.2 (10th Cir. 1977). Absent this rule, publishers and the mass media would be subject to
a multiplicity of claims leading to potential harassment, excessive liability, and draining of
judicial resources. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 (1984). As with
traditional mass media, content on a public website is broadly available and easily
reproduced. It may be viewed by literally millions in a broad geographic area for an
indefinite time period. See Reno v. ACLU, 521 U.S. 844, 853 (1997) (recognizing that the
Internet “constitutes a vast platform from which to address and hear from a worldwide
audience of millions of readers, viewers, researchers, and buyers”). Thus, there is a similar
if not greater need for the policy advanced by the single publication rule in the Internet
realm.

{12} “Republication” is an exception to the single publication rule, giving rise to a new
cause of action that restarts the statute of limitations. Firth v. State, 775 N.E.2d 463, 466
(N.Y. 2002). Republication occurs upon “a separate aggregate publication from the original,
on a different occasion, which is not merely a delayed circulation of the original edition.”
Id. (internal quotation marks and citation omitted). The justification for the exception is to
allow redress when the republished material is intended to expand the scope of the original
distribution. Id. As demonstrated by the cases considering the exception, the point at which
Internet republication may occur depends heavily on the facts of each case.

{13} Updating a website with information unrelated to the originally alleged defamatory
material is not sufficient to trigger the republication exception. In Firth, the defendant
posted a report on its website which contained allegedly defamatory statements. Id. at 464.
Although the claim was otherwise barred by the statute of limitations, the plaintiff argued
that a republication occurred when the website was updated with new reports unrelated to
the plaintiff. Id. at 466. In rejecting this argument, the court reasoned that “[t]he
justification for the republication exception has no application . . . to the addition of
unrelated material . . ., 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.” Id.

{14} Similarly, mere technical modifications, as opposed to changes in the nature of the
information itself, are insufficient to constitute republication. In Churchill v. State, a website
had been modified by moving and altering a menu bar and a press release in a new section
of the website, the effect of which was to make the offending material more prominent and
more easily accessible. 876 A.2d 311, 315 (N.J. Super. Ct. App. Div. 2005). Citing Firth,
the court in Churchill reasoned that finding republication from such minor alterations to a
website would “discourage the placement of information on the Internet or slow the
exchange of such information, reducing the Internet’s unique advantages.” Id. at 317
(internal quotation marks and citation omitted). “In order not to retrigger the statute of
limitations, a publisher would be forced either to avoid posting on a web site or use a
separate site for each new piece of information.” Id. (internal quotation marks and citation

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omitted). Thus, the court reasoned that it would defeat the purpose of the single publication
rule to treat mere technical changes as republications when they did not alter the “substance
or form” of the material. Id. at 319.

{15} Drawing from both Firth and Churchill, at least one court has found republication
based on changes to the actual “substance or form” of the original material. In In re Davis,
the defendant created a website that allegedly defamed the plaintiff and members of the
Plaintiffs’ family. 334 B.R. 874, 880-81(Bankr. W.D. Ky. 2005), rev’d in part on other
grounds, 347 B.R. 607 (W.D. Ky. 2006). After the statute of limitations expired on the
original material, the defendant added new sections to the website titled “Breaking News!”
and “Update!” Id. at 884 (internal quotation marks omitted). Both sections contained
substantial substantive additions to the website relating directly to the plaintiff. Id. The
court found that republication had occurred because the changes related to the original
defamatory material had “altered both the substance and the form of the original material.”
Id.

{16} The question of whether Internet republication has occurred is highly factual in that
it turns on the content of the second publication as it relates to the first. When a second
publication goes beyond mere editing or adds content, it may properly be considered a
republication if the effect is more than a “delayed circulation of the original edition.” See
Firth, 775 N.E.2d at 466 (internal quotation marks and citation omitted). Plaintiff argues
that Defendant added substantively when she provided the “update” in 2006. A comparison
of the content of two postings from the record also indicates that substantive additions were
made in 2006, and Defendant concedes that the second posting “substantially altered the
content.”

{17} While Defendant concedes that alterations were made in 2006, she also argues that
substantive changes alone are insufficient to constitute republication. Defendant relies on
Hoesten v. Best, 821 N.Y.S.2d 40 (App. Div. 2006). There, the court refused to find
republication absent a showing that the alleged defamatory statements were communicated
to a new audience. Id. at 46. Defendant’s reliance on Hoesten is misplaced because in that
case there were no substantive changes to the content. See id. (characterizing the two
statements at issue as “identical reports”). In Hoesten, the court found that republication did
not occur when “identical reports” were made on two separate occasions to virtually the
same audience. Id. In that context, the court concluded that “statements . . . made on a new
occasion . . . to the same audience . . . involv[ing] the identical subject matter,” were “more
akin to a delayed release of previously published matter as opposed to a distinct
republication.” Id. at 46-47. Thus, the court’s conclusion was not that distribution to a new
audience is required, but that absent substantive changes, such distribution is a consideration
that may give rise to republication. Hoesten contains important factual distinctions that
makes it unhelpful in this case.

{18} We hold that the 2006 publication is sufficiently different from the 2003 version to
create a genuine issue of fact as to whether the 2006 posting can reasonably be viewed as

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a republication. A jury should make that decision. We reverse the trial court’s grant of
summary judgment in favor of Defendant on this issue and remand for further proceedings.

Communications Decency Act

{19} Under the CDA “[n]o provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information
content provider.” 47 U.S.C. § 230(c)(1) (emphasis added). The CDA further provides that
“[n]o cause of action may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). These provisions
have consistently been interpreted as conferring broad immunity to providers or users of
interactive computer services for information originating from a third party. See Ben Ezra,
Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 984-85 (10th Cir. 2000); Zeran v. Am.
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Barrett v. Rosenthal, 146 P.3d 510, 513
(Cal. 2006).

{20} In order to qualify for immunity, a factual determination must be made to establish
whether (1) the defendant is a “provider or user of an interactive computer service,” (2) the
claim asserted treats the defendant as the “publisher or speaker of information,” and (3) the
published information was “provided by another information content provider.” Gentry v.
eBay, Inc., 121 Cal. Rptr. 2d 703, 714 (Ct. App. 2002) (internal quotation marks and citation
omitted). In order for summary judgment to be proper, the trial court must find that there
is no genuine issue of material fact as to whether Defendant satisfied each element.

{21} Although the record indicates some dispute as to whether Defendant’s website
constitutes an “interactive computer service,” we conclude that this element is met. 47
U.S.C. § 230(f)(2) defines “interactive computer service” as “any information service,
system, or access software provider that provides or enables computer access by multiple
users to a computer service, including specifically a service or system that provides access
to the Internet.” Plaintiff argues that this provision is meant to cover only Internet Service
Providers (ISP’s) such as America Online, or Internet chat or blog sites to which anyone may
freely post information or commentary. Plaintiff points out that http://www.happyhacker.org
does not allow direct third-party posting, and that Defendant admitted that her website was
non-interactive in response to an interrogatory. Plaintiff argues that the nature of the website
and Defendant’s admission places Defendant outside of the scope of the CDA, because she
is not providing an interactive service.

{22} Plaintiff’s argument fails to consider the full scope of the CDA. The CDA protects
not only providers of interactive computer services, but also mere users of such services.
Individual websites like Defendant’s fall within the CDA by their use of the interactive
computer services making them available on the Internet. See Batzel v. Smith, 333 F.3d
1018, 1031 (9th Cir. 2003) (finding no need to determine whether a website was itself an
“interactive computer service” because, in order to be made available on the Internet, a
website is necessarily a user of an interactive computer service). Here, Defendant’s website

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is housed on a third-party’s server which allows Internet access to multiple users. Therefore,
Defendant’s website falls within the scope of the CDA.

{23} Next, we examine whether Plaintiff is treating Defendant as the publisher or speaker
of the defamatory material. Plaintiff’s complaint alleged that Defendant made defamatory
claims against Plaintiff on her website and continues to post defamatory material about
Plaintiff. At trial, Plaintiff also alleged that Defendant used specific defamatory words in
reference to Plaintiff. Thus, we conclude that this element is met.

{24} Finally, we consider whether the alleged defamatory material was provided by
another “information content provider” within the meaning of the CDA. The CDA defines
an information content provider as “any person or entity that is responsible, in whole or in
part, for the creation or development of information provided through the Internet or any
other interactive computer service.” 47 U.S.C. § 230(f)(3). Thus, the question becomes
whether Gimignani and the Alligator may be considered the sole provider of the content
contained in the second posting or whether Defendant may be considered at least partly
responsible for its creation or development. To the extent that Defendant may be considered
an original “information content provider,” she may also be held accountable in defamation.
See Barrett, 146 P.3d at 527 n.19 (noting that “[a]t some point, active involvement in the
creation of a defamatory Internet posting would expose a defendant to liability as an original
source”); cf. Zeran, 129 F.3d at 330 (recognizing that an original, culpable party who posts
a defamatory message would not escape accountability).

{25} In general, the exercise of traditional editorial functions such as selecting material
for publication or editing portions of material before posting do not rise to the level of
content creation or development. Batzel, 333 F.3d at 1031. For example, in Ben Ezra
Weinstein & Co., deleting data from a stock quotation before posting it to a website was
considered an editorial function not resulting in liability. 206 F.3d at 985-86. Similarly, in
Batzel, choosing to publish one email over others (content selection) and making minor
alterations to the email was not sufficient to give rise to liability under the CDA. 333 F.3d
at 1032.

{26} The holding in Batzel stems from the prevalent view that the CDA is intended and
designed to promote Internet self-regulation. 47 U.S.C. § 230(c)(2)(A) states that “[n]o
provider or user of an interactive computer service shall be held liable on account of . . . any
action voluntarily taken in good faith to restrict access to or availability of material.” In
enacting 47 U.S.C. § 230, Congress was, in large part, responding to the New York state
court decision of Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup.
Ct. May 24, 1995). Zeran, 129 F.3d at 331. In Stratton Oakmont, the plaintiffs sued the
defendant (an interactive computer service) for defamatory comments made by an
unidentified third party on the defendant’s website. Stratton Oakmont, 1995 WL 323710,
at *1. Though the defendant was not the original content provider, it was held liable as the
publisher of the comments because it controlled content on its website by actively screening
and editing messages posted on its bulletin boards. Id. at *4. The Zeran court summed up

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the purpose of the CDA in the context of both its express language, and its relation to
Stratton Oakmont, concluding:

Congress enacted [47 U.S.C.] § 230 to remove the disincentives to
self[-]regulation created by the Stratton Oakmont decision. Under that
court’s holding, computer service providers who regulated the dissemination
of offensive material on their services risked subjecting themselves to
liability, because such regulation cast the service provider in the role of a
publisher. Fearing that the specter of liability would therefore deter service
providers from blocking and screening offensive material, Congress enacted
[47 U.S.C.] § 230’s broad immunity to “remove disincentives for the
development and utilization of blocking and filtering technologies that
empower parents to restrict their children’s access to objectionable or
inappropriate online material.” 47 U.S.C. § 230(b)(4). In line with this
purpose, [47 U.S.C.] § 230 forbids the imposition of publisher liability on a
service provider for the exercise of its editorial and self-regulatory functions.

Zeran, 129 F.3d at 331. Here, a genuine issue of fact exists as to whether Defendant’s
actions went beyond those intended to be immunized under the CDA. Instead of merely
editing an email from a third party, Defendant apparently requested potentially defamatory
material for her own stated purpose of “‘making fun of’ Plaintiff.” That material was
incorporated into an overall larger posting containing her own thoughts and contributions.
As in In re Davis, Defendant also stated that her posting was an “update” to one of her own
prior postings. See 334 B.R. at 884. Therefore, Defendant’s actions could reasonably be
viewed as going beyond what is protected by the CDA, exposing Defendant to potential
liability as an original “information content provider.”

{27} Another aspect of this case raises a related issue of fact that remains to be
determined. Defendant parses out the individual elements of her 2006 post in order to focus
solely on her editorial role with respect to the content provided by Mr. Gimignani. By
parsing out the text of Mr. Gimignani’s email from Defendant’s own additions, Defendant
creates a question as to whether the 2006 posting could reasonably be viewed as containing
two substantive elements calling for separate analysis and treatment: one that may have
been a mere posting of an email from a third party such that it is protected by the CDA, and
another that may have been more of a delayed release of an existing publication such that
it constitutes a “single publication.” This determination could affect the outcome not only
of the CDA question, but also of the republication question. Here again, we conclude that
reasonable minds could differ on the propriety of considering it a single, unitary posting or
as containing individual elements to be analyzed separately. Therefore, we reverse the trial
court’s grant of summary judgment on this issue and remand.

Other Matters

{28} Having found the grant of summary judgment on the statute of limitations and CDA

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improper, we do not consider Plaintiff’s appeal of the denial of her motion for summary
judgment on the merits or Defendant’s appeal of the denial of her motion for summary
judgment in which she claims Plaintiff is not the real party in interest. Generally, denial of
a motion for summary judgment is not in itself appealable because parties may still obtain
the relief to which they may be entitled after additional discovery or trial on the merits. See
Doe v. Leach, 1999-NMCA-117, ¶ 12, 128 N.M. 28, 988 P.2d 1252. On remand, either party
may again seek relief from the trial court on the grounds previously asserted in their
respective motions. Therefore, we give no further consideration to this issue at this time.

{29} Nor do we consider Defendant’s argument that the trial court erred in denying her
motion for summary judgment on the ground that Plaintiff is not the real party in interest.
Defendant failed to file a notice of appeal on this issue pursuant to Rule 12-201(A) NMRA,
and therefore appeal of this matter is not properly before this court. Even if Defendant’s
appeal was procedurally sufficient, as previously observed, denial of the motion for summary
judgment should not be considered under these circumstances. Again, the trial court made
no determination as to whether Plaintiff is in fact the real party in interest, but only ruled that
Plaintiff would be allowed to bring forth more evidence on the matter. The trial court acted
within its discretion, and Defendant retains her opportunity to be heard on these matters at
the trial level. Therefore, we give no further consideration to this issue at this time.

{30} Finally, we dispose of Plaintiff’s appeal of the denial of her motion to sanction
defense counsel and her motion to amend her civil complaint. Plaintiff’s pro se brief is
generally quite deficient and, with respect to these matters, fails to provide any argument
other than citing two irrelevant, non-binding cases. “Although pro se pleadings are viewed
with tolerance, a pro se litigant, having chosen to represent himself, is held to the same
standard of conduct and compliance with court rules, procedures, and orders as are members
of the bar.” Newsome v. Farer, 103 N.M. 415, 419, 708 P.2d 327, 331 (1985) (emphasis
omitted) (citation omitted). Pro se litigants must comply with the rules and orders of the
court and will not be treated differently than litigants with counsel. Bruce v. Lester, 1999-
NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84. Therefore, pursuant to Rule 12-213(A)(4)
NMRA (requiring that the brief in chief contain an argument), we do not consider the portion
of Plaintiff’s appeal concerning the denial of her motion to sanction defense counsel or her
motion to amend the denial of her civil complaint.

CONCLUSION

{31} For the foregoing reasons, we reverse the trial court’s grant of summary judgment
in favor of Defendant on the statute of limitations and the CDA and remand for further
proceedings consistent with this opinion.

{32} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

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WE CONCUR:

CYNTHIA A. FRY, Judge

CELIA FOY CASTILLO, Judge

Topic Index for Woodhull v. Meinel, No. 27,959

CP Civil Procedure
CP-SL Statute of Limitations
CP-SJ Summary Judgment

FL Federal Law
FL-CD Communications Decency Act

TR Torts
TR-DF Defamation

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