New York Law Review

Tag: Single Publication Rule

  • Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007): Statute of Limitations for Right of Privacy Claims

    Nussenzweig v. diCorcia, 9 N.Y.3d 184 (2007)

    The single publication rule applies to claims brought under New York Civil Rights Law §§ 50 and 51, meaning the statute of limitations begins to run from the date the offending material is first published, not from the date of discovery.

    Summary

    Photographer Philip-Lorca diCorcia took candid photographs of people in Times Square between 1999 and 2001 without their knowledge. One photograph included Erno Nussenzweig. DiCorcia exhibited and sold the photographs in the fall of 2001. Nussenzweig did not discover the use of his image until March 2005 and subsequently sued, alleging a violation of his statutory right to privacy under Civil Rights Law §§ 50 and 51. The defendants moved for summary judgment, arguing the one-year statute of limitations barred the claim. The New York Court of Appeals held that the single publication rule applied, and the statute of limitations ran from the initial publication date, not the date of discovery, barring Nussenzweig’s claim.

    Facts

    Between 1999 and 2001, Philip-Lorca diCorcia took candid photographs of individuals in Times Square without their consent or knowledge.

    In the fall of 2001, diCorcia exhibited these photographs at an art gallery owned by Pace/MacGill, Inc.

    Pace/MacGill published and sold a catalogue containing images on display, and created limited edition prints of each photograph for sale.

    One of the images was of Erno Nussenzweig.

    Nussenzweig did not learn of the photograph’s use until March 2005.

    Procedural History

    Nussenzweig commenced an action against diCorcia and Pace/MacGill, Inc., alleging violation of Civil Rights Law §§ 50 and 51.

    Defendants moved for summary judgment, arguing the claim was time-barred by the one-year statute of limitations.

    Supreme Court granted the defendants’ motion.

    The Appellate Division affirmed the Supreme Court’s decision and granted leave to appeal to the Court of Appeals, certifying the question of whether the order of the Supreme Court, as affirmed, was properly made.

    Issue(s)

    Whether the single publication rule applies to claims brought under Civil Rights Law §§ 50 and 51, such that the statute of limitations begins to run from the date of the initial publication, or from the date the plaintiff discovers the publication.

    Holding

    Yes, because the policy underlying the single publication rule – to prevent stale claims and protect defendants from defending actions after memories fade and evidence is lost – is equally applicable to statutory right of privacy claims under Civil Rights Law §§ 50 and 51.

    Court’s Reasoning

    The court applied the single publication rule, which states that a cause of action accrues on the date the offending material is first published, citing Gregoire v Putnam’s Sons, 298 NY 119, 125-126 (1948).

    The court reasoned that the policy behind statutes of limitations, as articulated in Gregoire, is to “ ‘spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost’ ” (id. at 125, quoting Chase Securities Corp. v Donaldson, 325 US 304, 314 [1945]).

    The court acknowledged that New York appellate courts have generally applied the single publication rule to statutory right of privacy claims. It cited cases such as E.B. v Liberation Publs., 7 AD3d 566, 567 [2d Dept 2004] and Castel v Sherlock Corp., 159 AD2d 233 [1st Dept 1990], while also noting the exception in Russo v Huntington Town House, 184 AD2d 627, 628 [2d Dept 1992], which held the statute of limitations runs from the date of the most recent violation.

    The Court found that the publishing event occurred no later than the fall of 2001, more than one year before Nussenzweig commenced suit. Therefore, his claims were time-barred.

  • Firth v. State, 98 N.Y.2d 362 (2002): Applying the Single Publication Rule to Internet Defamation

    Firth v. State, 98 N.Y.2d 362 (2002)

    The single publication rule, which limits defamation claims to a single cause of action based on the initial publication of defamatory material, applies to postings on the internet; moreover, modifying a website with unrelated content does not constitute a republication of the original defamatory material.

    Summary

    George Firth sued the State of New York for defamation based on a report posted on the State Education Department’s website criticizing his job performance. The claim was filed more than a year after the initial posting, exceeding the statute of limitations. Firth argued that each viewing of the report constituted a new publication, or alternatively, that a later modification to the website with unrelated content constituted a republication. The New York Court of Appeals held that the single publication rule applied to internet postings, preventing endless retriggering of the statute of limitations. The court further ruled that adding unrelated content to a website does not constitute a republication of previously posted defamatory material.

    Facts

    George Firth, former Director of the Division of Law Enforcement for the Department of Environmental Conservation, was criticized in a report issued by the Office of the State Inspector General on December 16, 1996. On the same day, the State Education Department posted an executive summary with links to the full report on its Government Information Locator Service Internet site. Firth filed a defamation claim against the state on March 18, 1998, more than one year after the initial posting.

    Procedural History

    The Court of Claims granted summary judgment to the State, holding that the one-year statute of limitations for defamation barred Firth’s claim. The Appellate Division affirmed, reasoning that the single publication rule applied. The Court of Appeals granted Firth’s appeal.

    Issue(s)

    1. Whether the single publication rule applies to allegedly defamatory statements posted on an internet site for statute of limitations purposes.

    2. Whether an unrelated modification to a different portion of a website constitutes a republication of previously posted defamatory material.

    Holding

    1. Yes, because applying the multiple publication rule to internet communications would create a greater potential for endless retriggering of the statute of limitations, multiplicity of suits, and harassment of defendants, which would inhibit the open dissemination of information on the internet.

    2. No, because the mere addition of unrelated information to a website is not reasonably inferable as communicating the earlier defamatory information to a new audience.

    Court’s Reasoning

    The Court of Appeals reasoned that the single publication rule, adopted in Gregoire v Putnam’s Sons, was designed to prevent the endless retriggering of the statute of limitations and the multiplicity of suits that would arise if each communication of defamatory material constituted a new publication. The court recognized that communications accessible over a public website are similar to those in traditional mass media, but on a far grander scale. Quoting Reno v American Civ. Liberties Union, the court noted that the internet constitutes a vast platform from which to address a worldwide audience. Therefore, applying the multiple publication rule to internet postings would have a serious inhibitory effect on the open dissemination of information.

    Regarding republication, the court stated that it occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely a delayed circulation of the original edition. The justification for the republication exception is that the subsequent publication is intended to and actually reaches a new audience. The court found that the mere addition of unrelated information to a website could not be equated with the repetition of defamatory matter in a separately published edition of a book or newspaper. A rule applying the republication exception under these circumstances would discourage the placement of information on the internet or slow the exchange of information, reducing the internet’s unique advantages. Therefore, the court held that any modification to a website does not constitute a republication of the defamatory communication itself.