Tuesday, September 25, 2012
As a California anti-SLAPP attorney, I found professor Eric Goldman's recent article on proposed federal anti-SLAPP legislation interesting. I am not sure that federal legislation is desirable but I do agree with professor Goldman in that a statute which distinguishes between journalists and non-journalists makes no sense. Effective anti-SLAPP statutes focus upon the nature of content, not classifications regarding the speaker. As such, the "Free Press Act of 2012" will likely go nowhere.
Thursday, September 13, 2012
This week the Federal Court of Appeals for the Ninth Circuit affirmed the lower court’s judgment against famous aviator Chuck Yeager in his suit against an online memorabilia seller. The lower court found that Yeager’s January 2008 lawsuit regarding October 2003 website statements had run afoul of the two-year statute of limitations.
Yeager had alleged that certain statements on the defendants’ “Aviation Autographs” website violated his common law right to privacy and his statutory right of publicity. Both claims are subject to a two-year statute of limitations.
In order to get around the statute of limitations, Yeager had argued that the defendants had republished the statements by (1) continuing to host the statements; or (2) by republishing the statements each time defendants modified other content on the webpage.
The court rejected this argument, ruling that because of California’s use of the “single publication rule,” the statute of limitations regarding statements published on a website was not restarted by the continuing hosting of the web content, unless (1) the statement itself is substantively altered or added to; or (2) the website is directed to a new audience.
The court noted that this outcome was consistent with previous cases, such as
(a) prior California decisions applying the single publication rule to publicity rights (Christoff v. Nestle USA);
(b) prior federal decisions applying the single publication rule to web hosted information (Oja v. United States Army Corps of Engineers); and
(c) the leading state court case regarding the single publication rule and websites that are updated with separate information (Firth v. State).
The Court reasoned that accepting Yeager’s arguments would unnecessarily “freeze” websites from updating and adding new content, forcing publishers either to use new websites or forgo publication whenever new information was available. Application of the single publication rule facilitated “open, pervasive dissemination of information and ideas over the Internet.”
Internet businesses should be mindful when considering an update or retargeting problematic content, such as potentially defamatory posts or invasions of privacy like the Yeager “endorsements” at issue in this case. Doing so may reset the clock on the powerful statute of limitation defense.
On the flip side, potential plaintiffs need to act quickly regarding offending online content in order to preserve their right of recovery, or risk being barred from acting against stale offending content.
Yeager v. Bowlin, 9th Circuit Court of Appeals, Sept. 10, 2012