Written by Brian A. Cafritz, Esq.
Virginia has long had a defense-friendly one-year statute of limitations for defamation claims. Under Virginia Code § 8.01-230, the accrual of right of action occurs when injury is sustained. In the context of a defamation action, the cause of action accrues and the statute of limitations begins to run when the injury to reputation is sustained by publication. Va. Code § 8.01-230; see, Weaver v. Beneficial Finance Co., 199 Va. 196, 200-01, 98 S.E.2d 687 (1957).
Over the last hundred years, it has been relatively easy to calculate the accrual date for the defamatory acts. If one made a statement or drafted a written letter, the date of publication of the statement or letter became the accrual date. For example, if a photocopy of the same letter was copied and mailed to different recipients on different dates, the law considers each mailing of the same letter to be a new publication that creates a separate cause of action with the statement being heard on different dates in different locations and causing different damages. As a result, based on the date of publication, each mailing of the photocopied letter has its own accrual date for the purposes of the statute of limitations. See Bradford J. Brady v. Stefanie Marshall and M3-Marshall Contracting & Masonry, Inc., (Cir. Ct. Albemarle County, Case No. CL19-1701, J. Higgins, 2021).
However, in today’s society, communications through letters is becoming less common. Written letters had been replaced by emails and texts. But today’s technology has changed that as well. The introduction of social media platforms, pod casts, and multimedia communications complicated that calculus even further. Now recordings and writings are posted and distributed through social media feeds to hundreds and thousands of friends and followers. Communications, videos, and recordings are regularly uploaded to the cloud and recalled on websites in a way that defamation laws never contemplated.
So one must ask how the Courts will adapt to the changing landscape of communications. First, and as a general rule, social media platforms that allow users to post content cannot be sued for the defamatory publications of its users. Under Section 230 of the Communications Decency Act of 1996, social media platforms enjoy immunity from civil liability based on third-party content and/or the removal of content in certain circumstances. The noteworthy aspect of this law is that it extends beyond social media platforms such as Facebook or Snapchat, and can often extend to news outlets and online markets for the sale of goods.
Section 230, however, only protects the platform that hosts the content. It does not protect the user who actually published the defamatory content.
When dealing with users who post defamatory content friend and followers on social media or other platforms, the law has applied the “single publication” rule.
Under the single publication rule “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.” Myska v. RMS Technologies, Inc., 25 Va. Cir. 344 (Fairfax, Oct. 21, 1991) (quoting Restatement (Second) of Torts § 577A(3)). The single publication rule is intended to protect “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 as the foundation for a new action.” Restatement (Second) of Torts § 577A Comment on Subsection (3).” Armstrong v. Bank of Am., 61 Va. Cir. 131 (Cir. Ct. 2003).
The same concept that was adopted to govern television broadcasts or magazine publications will now apply to social media postings and internet publications. This rule provides protection to the defendant (and courts) and prevents the onslaught of hundreds of thousands of separate actions.
In application, the single publication rule looks to the date the original publication was made to determine the accrual date for the cause of action. By example, if the sends a defamatory post, one follower may see the post immediately, while another user does not see the same post in her feed for a week. Moreover, hundreds of other users may then see the same publication on various other dates in different locations. The single publication rule treats all of the viewings as one single publication. The rule looks to the date the finished publication is fist released into the stream of distribution. That one date of publication is used calculate the accrual of all claims arising from the publication, and it is from that date that one year statute of limitations begins to run. Because of the Single Publication Rule, the Courts have taken a potentially unmanageable problem and created a fairly straightforward and logical way to calculate the statute of limitations.
If you have questions about the law on defamation or social media, the lawyers at KPM LAW are ready to answer them.