Defamation Privileges and Defenses

As a general rule, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be successfully sued for defamation (honing these good habits has other benefits as well, as they will make your work more accurate and credible).

There are times, however, when even the most careful publisher can be sued for defamation. In such a situation, a number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. The most important defense is "truth." If the statement at issue is substantially true, a defamation claim cannot succeed because you have a right to publish truthful information even if it injures another's reputation. But truth is not the only defense that may be available. For example, if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. Similarly, statements by legislators on the floor of the legislature, or by judges while sitting on the bench are typically privileged and cannot support a cause of action for defamation, even if they turn out to be false.

Sometimes the reliance on these sources may result in the publication of defamatory falsehoods, but in publishing the information you are performing the vital civic function of making information available to the public and of playing a watchdog role with regard to the government and other interests in society. To deal with the tension between the possibility of defaming individuals and the importance of reporting the news and information in a timely manner, courts have developed a number of defenses which often called "privileges" by lawyers. Keep in mind, however, the privileges described below are not available in all circumstances or in every state, so you should also review your state's specific law in the State Law: Defamation section of this guide.

Possible privileges and defenses include:

  • Substantial Truth: "Truth" is an absolute defense to an action for defamation. Even if you are not sure that what you've published is true, you should read this section.

  • Opinion and Fair Comment Privileges: Statements of opinion generally cannot support a cause of action for defamation, even if they are outrageous or widely off the mark. A defense similar to opinion is "fair comment on a matter of public interest." If the mayor is alleged to be involved in a corruption scandal, expressing your opinion that you believe the allegations are true is not likely to support a cause of action for defamation.

  • Fair Report Privilege: This very important privilege may apply if you relied on a public document or a statement by a public official for the incorrect information, made clear that the public document or statement was your source, and fairly and accurately used the source.

  • Neutral Reportage Privilege: The neutral reportage privilege covers unverified accusations made by one public figure about another on a matter of legitimate public interest, such as when a politician who opposes a health care bill says that the bill's sponsor is taking money from the pharmaceutical industry.

  • Wire Service Defense: If you republish information from a reputable news source (such as the Associated Press) you may be entitled to the wire service defense if it turns out that the information was false.

  • Statute of Limitations: If the plaintiff has waited too long to file a lawsuit, the defamation claim might be barred by the statute of limitations, which sets the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred.

Substantial Truth

"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.

The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.

The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.

Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes and translating from recordings and the need to edit a speaker's comments into a coherent statement. The Court stated:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results in a material change in the meaning conveyed by the statement. (citations omitted)

The Court went on to note the use of quotation marks to directly attribute inaccurate statements to the speaker "bears in a most important way on [this] inquiry, but it is not dispositive in every case." Generally speaking, a publisher is given more leeway for inaccuracies when he is interpreting his sources than when he is purporting to be providing a "direct account of events that speak for themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971).

Some examples of statements that courts have found to be "substantially true":

  • A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).

  • A statement that an animal trainer beat his animals with steel rods, when actually he had beaten them with wooden rods. See People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995).

  • A statement that a father sexually assaulted his stepdaughter 30-50 times, when the stepdaughter testified he had done so only 8 times. See Koniak v. Heritage Newspapers, Inc., 198 Mich. App. 577 (1993).

  • A statement that a man was sentenced to death for six murders, when in fact he was only sentenced to death for one. See Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del. Super. Ct. 1998).

  • A statement that Terry Nichols was arrested after the Oklahoma City Bombing, when actually he had only been held as a material witness. See Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 2005).

  • A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

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Opinion and Fair Comment Privileges

The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim.

This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false.

All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. For example, if you were to say "In my opinion, Danielle is failing out of school" it would likely lead your readers to assume that there are some unstated facts you relied on to draw your conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if you state "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information you are basing the opinion on, and allows the reader to come to his own conclusion.

Compare the following two statements:

  • "During the last six months I've seen Carol in her backyard five times at around 1:30pm on a weekday seated in a deck chair with a beer in her hand. I think Carol must be an alcoholic."

  • "I think Carol must be an alcoholic."

The first example states true, non-defamatory facts upon which a reasonable conclusion (that Carol is an alcoholic) is based, and also emphasizes the limits of your knowledge (that you only saw Carol five times). It would be protected as a statement of opinion. Under the second example, readers would likely assume that there are unstated, defamatory facts upon which your conclusion is based. Therefore it would likely fall outside of the privilege.

Keep in mind that even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply. For example, if you say that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology.

To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context.

Distinguishing Between Statements of Fact and Opinion

In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim.

Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common-sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion.

Some examples of protected opinions include the following:

  • Statements in the "Asshole of the Month" column in Hustler magazine that described a feminist leader as a "pus bloated walking sphincter," "wacko," and someone who suffers from "bizarre paranoia" were protected opinion because the context of the magazine and column made it clear that the statements were "understood as ridicule or vituperation" and "telegraph to a reader that the article presents opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

  • Statement in the New York Post that referred to the plaintiff as a "fat, failed, former sheriff's deputy" was protected opinion because it was hyperbole and had an "alliterative quality" with a "rhetorical effect indicative of a statement of opinion." Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).

  • Statements on a radio talk show that described the plaintiff as a "chicken butt," "local loser" and "big skank" were not defamatory because they were "too vague to be capable of being proven true or false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).

  • A cartoon of a noted evangelist leader fornicating drunk in an outhouse with his mother because the parody was so outrageous it could not "reasonably be understood as describing actual facts" about Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

Keep in mind, however, that you can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude you had evidence that Alex had indeed stolen the money, and that you intend the statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions.

Context and the Totality of the Circumstances

In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy-era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion.

The Internet presents particular issues for the courts, as it is a medium where the lack of face-to-face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context.

But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted:

Here, the general tenor, the setting and the format of [the] statements strongly suggest that the postings are opinion. The statements were posted anonymously in the general cacophony of an Internet chat-room in which about 1,000 messages a week are posted about [the particular company]. The postings at issue were anonymous as are all the other postings in the chat-room. They were part of an on-going, free-wheeling and highly animated exchange about [the particular company] and its turbulent history. . . . Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege.

To summarize, the factors courts often use to determine whether a statement is a protected opinion are:

  • What is the common usage and specific meaning of the language used?

  • Is the statement verifiable? Can it be proven false?

  • What is the full context of the statement?

  • What are the social conventions surrounding the medium the statement occurred in?

Note that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.

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Fair Report Privilege

The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records.

The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows you to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.

Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

  1. Your source is an official public document or statement by a public official on a matter of public concern;

  2. You properly attribute the information to that source; and

  3. You fairly and accurately portray the information from the document or statement.

Sources Covered By the Fair Report Privilege

While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered.

Examples where the fair report privilege would probably apply include:

  • Statements made by a judge in a trial
  • A speech made by a city council member during a council meeting
  • Testimony during a trial
  • Facts recorded in a final police report
  • Analysis reported in an Environmental Protection Agency survey

The privilege would probably not apply to:

  • Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
  • Gossip overheard on the courthouse steps
  • Offhand remarks made by a government official in a private setting
  • Statements made in a draft government report

Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.

Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.

Ensuring That Your Use of Sources is "Fair and Accurate"

Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony you relied on is later convicted of perjury, the privilege still applies if you accurately reported and attributed the testimony he provided in the first place. It would apply even if you had knowledge that the witness was lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.

Generally, courts will follow rules of accuracy that echo the "gist" and "sting" rule developed to test for "substantial truth." See the section on Substantial Truth for more information.

But what is critical is that you accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when you are "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege.

In general, courts will look at whether you acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one-sided.

Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.

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Neutral Report Privilege

Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.

Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

  1. A responsible, prominent organization or individual;

  2. Makes a serious charge on a matter of public interest;

  3. Against another public figure or organization; and

  4. The charge is accurately and disinterestedly reported.

Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).

The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:

What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

Edwards, 556 F.2d at 120.  The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.

Examples of the Neutral Reportage Privilege

Examples of instances where courts have applied the neutral reportage privilege include:

  • Newspaper report that a state auditor accused a town trustee of faking a snow emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996).
  • A newspaper report that a political campaign brochure accused the county's Italian-American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988).
  • A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).

Differing State Approaches to the Neutral Reportage Privilege

Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways:

  • Private figure plaintiffs: Edwards v. National Audubon involved an instance where the person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved.

  • Trustworthy and prominent sources: Few sources are more trustworthy and prominent than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story.

  • Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Consult your individual state defamation section, but also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.

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Wire Service Defense

If you republish a news item from a "reputable news service," you may be covered by a privilege called the "wire service defense." This defense to a defamation claim is distinct from the immunity provisions in the section 230 of the Communications Decency Act (commonly referred to as CDA 230 immunity), which may also cover if you republish content from a third-party. See the section on Publishing the Statements and Content of Others for more information.

Generally speaking, in states that recognize the wire service defense, it will apply if:

  1. You republish a news item from a reputable news agency;

  2. You did not know the information was false;

  3. The news item on its face does not indicate any reason to doubt its veracity; and

  4. You do not substantially alter the news items when republishing it.

In the Internet context, it is not clear how wide a net is cast by the term "reputable news agency." Traditional wire services such as the Associated Press and United Press International would likely be covered, but courts have not yet looked at the wire-service defense in light of RSS feeds and similar distribution tools.

Keep in mind that rewriting news items in a blog format will limit your ability to invoke the wire service defense. When you choose to modify and comment on the material, you will likely lose the ability to assert this defense.

Not all states recognize the wire service defense, so you should consult your state defamation section of this legal guide for more information.

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Statute of Limitations

"Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts.

Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.

Because each state has its own statute of limitations for defamation claims, which vary between one and three years, you should refer to the State Law: Defamation section to find out what the specific statute of limitations is in your state.

Determining When the Statute of Limitations Period Begins

Generally speaking, the limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff).

This rule is relatively easy to apply when a defamatory statement is spoken to a third person. But what about situations where publication is to a mass audience, such as on the Internet? In these situations, could the statute of limitations begin anew at the time of each publication, such that the statute of limitations could restart every time someone reads a blog post or finds an archive copy of a newspaper in a library, even if the original material was published years ago?

Single Publication Rule

Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re-publication has started a new statute of limitations period only when online material is altered in a significant way: be careful to consider this if you are thinking of substantially editing or rewriting old material. See your individual state section for information on whether the state recognizes the single publication rule.

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