Materially and Substantively Modifying Online Articles Restarts the Clock in NJ Defamation Claims

by Pepper Hamilton LLP
Contact

Pepper Hamilton LLP

The New Jersey Supreme Court recently held, in Petro-Lubricant Testing Laboratories, Inc. v. Adelman, that New Jersey’s one-year statute of limitations for defamation claims restarts if an online article’s author materially and substantively changes the article’s content. Although the case was ultimately dismissed on different grounds, this decision serves as a reminder that modifying online articles can restart the clock for potential defamation plaintiffs.

Background

This case arises out of Asher Adelman’s website, eBossWatch.com. The website gathered information about employers to give job seekers insight into what it would be like to work for them. In 2010, Adelman posted an article on that website, reporting on allegations contained in a civil employment discrimination complaint filed against Petro-Lubricant Testing Laboratories and one of its executives, John Wintermute. Adelman also included Wintermute and a hyperlink to the article in an online list of “America’s Worst Bosses 2010.”

In December 2011, Wintermute’s counsel wrote to Adelman, claiming that the article was false and defamatory, demanding the removal of the article from the website and the removal of Adelman’s name from the worst bosses list, and threatening to sue. In response, Adelman revised the article to make clearer that it was reporting allegations made in a lawsuit. Petro-Lubricant and Wintermute nonetheless sued for defamation in June 2012 — within a year of Adelman’s revisions to the article, but more than a year after Adelman originally posted the article and the worst bosses list.

Adelman ultimately moved for summary judgment, arguing, among other things, that New Jersey’s one-year statute of limitations barred any claim. While the trial court granted summary judgment on other grounds, the court rejected Adelman’s statute of limitations argument, finding that his December 2011 modification of the online article constituted a republication and therefore triggered a new one-year statute of limitations. On review, the New Jersey Appellate Division disagreed, holding that any modifications by Adelman were insufficient to constitute a republication of the original online article and that the statute of limitations thus required dismissal. The Appellate Division emphasized that, in revising the original article, Adelman had intended to diminish its “defamatory sting.”

New Jersey Supreme Court’s Decision

In Petro-Lubricant, the New Jersey Supreme Court reversed the Appellate Division’s holding and announced the following standard for determining whether changes to an online publication constitute a republication and therefore restart the statute of limitations:

  • “A republication occurs to an online publication if an author makes a material and substantive change to the original defamatory article.”

    • “A material change is one that relates to the defamatory content of the article at issue. . . . [It] is not a technical website modification or the posting on the website of another article with no connection to the original defamatory article.”

    • “A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article. . . . [It] is not the mere reconfiguring of sentences or substitution of words that are not susceptible of conveying a new defamatory meaning to the article.”

Applying this standard, the court found as a matter of law that the following modifications by Adelman were not “material and substantive”:

  • minor alterations to the article’s title

  • removing a photograph of Petro-Lubricant’s sign

  • changing a description of Wintermute from “a violent, raging drunk” to a “dangerous and violent alcoholic.”

On the other hand, the court found that there were genuine issues of fact as to whether the following modification was “material and substantive”:

  • changing the statement that Wintermute “allegedly forced workers to listen to and read white supremacist materials” to Wintermute “allegedly regularly subjected his employees to ‘anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants,’” the latter of which quoted directly from the underlying discrimination complaint.

The court held that this modification was “material” because it “relat[ed] to the article’s defamatory content.” And the court found that there were genuine issues of material fact as to whether the modification was “substantive” because a reasonable person might think that, by replacing “white supremacist” with “anti-religion, anti-minority, anti-Jewish, anti-Catholic, anti-gay,” Adelman “injected a wholly new defamatory statement into the article.” In the court’s view, “a [r]easonable person might not believe that all white supremacists hold anti-religious or anti-gay views.”

Notably, the court expressly rejected the Appellate Division’s finding that Adelman’s intent to “lessen the defamatory sting” of the article was relevant in analyzing whether his online modifications were “material and substantive.” As the Supreme Court succinctly stated, “[g]ood intentions, without more, do not diminish the impact that defamatory words have on undermining another’s reputation.”

Thus, because there were genuine issues of material fact as to whether Adelman’s modifications were “material and substantive,” New Jersey’s statute of limitations did not bar the plaintiff’s claims.

Takeaway

Going forward, those posting online content should be aware that making a “material and substantive” change to the online version of an article can restart the statute of limitations on a defamation claim in New Jersey. We will continue to monitor developments in the law, especially as lower courts apply this “material and substantive change” standard.

 

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.