How social media complicates defamation claims and how to deal with them

Five professional models who sued long after a state’s three-year statute of limitations expired may file defamation claims against an adult entertainment nightclub for posting their images on Facebook , without their permission.

However, the models must prove that they did not know and should not be expected to have known about the posts earlier than they did.

The Massachusetts Supreme Judicial Court (SJC) has ruled that the traditional rule that a defamation claim accrues and the statute of limitations begins to run when the allegedly defamatory content is published in print or on the Internet should be adjusted when the content is posted to the “vast” social media universe based on how popular the content is.

According to the SJC, answering when someone knew or reasonably should have known about a social media post requires a “very specific inquiry” into the “totality of the circumstances,” including the distribution, searchability, and accessibility of social media posts . .

At the request of the US District Court for Massachusetts, the SJC addressed for the first time when a claim for defamation begins to arise in Massachusetts cases involving social media content.

Five models

The five models allege the owner of Club Alex’s Adult Entertainment improperly used their images in social media posts to promote the club between 2013 and 2015. The models filed a lawsuit in federal district court alleging defamation and other related claims , but not until 2021 – well beyond the three-year statute of limitations.

Massachusetts law says tort claims must “commence only within three years after the cause of action accrued.” As a general matter, a tortious cause of action accrues on the date the plaintiff suffers an injury.

However, the CJS noted that the state recognized “the unfairness of a rule that holds that the statute of limitations has expired even before the plaintiff knew or reasonably should have known that she might have been injured by the conduct of another.” To combat this unfairness, the court adopted a common law “discovery rule” for the purpose of determining when a cause of action accrues and thus when the statute of limitations begins to run.

The models argued for the application of the discovery rule in their situation, thereby preventing the statute of limitations from running until they knew or reasonably should have known that they were harmed by the alleged tortfeasor.

New question

The federal district court recognized that the question of whether the discovery rule applies in defamation cases involving social media was a novel question. Therefore, the court asked the CJS to answer the following:

“Under what circumstances, if any, is material posted publicly on social media platforms ‘inherently unknown’ for the purpose of applying the discovery rule in the context of defamation, right of publicity, right to privacy, and related tort claims?”

“Inherently unknown” refers to whether a person knew or should have known about the content.

The SJC answered the question by first noting that in Massachusetts the discovery rule does apply to defamation and other tort claims: “Claims for defamation, invasion of privacy, violation of publicity, and related claims arising out of posted material on social media platforms accrues when a plaintiff knows or reasonably should know that he or she has been harmed by the defendant’s publication of that material.”

The SJC continued, laying out for the first time how the rule should work in the social media context:

“Given how ‘vast’ the social media universe is on the Internet and how access to and ability to search social media posts can vary from platform to platform and even from post to post, this determination requires consideration of the whole. of the circumstances surrounding the social media post, including the extent of its distribution and the accessibility and searchability of the post.”

The CJS concluded that “the application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant’s social media posting must often be left to the state the facts. . Where, however, the material posted on social media is widely distributed and easily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.”

Complicated analysis

The SJC recognized that social media platforms complicate the analysis of discovery rules because the inquiry involves whether the publication is widely disseminated to the public. The Court has previously held that the discovery rule did not apply to a public libel printed in a widely available newspaper in the plaintiff’s hometown. That position — that the discovery rule will not affect statutes of limitations in the context of statements widely published in the print media — is accepted in Massachusetts and many other jurisdictions, according to the SJC.

More recently, the state court of appeals considered the discovery rule in the Internet context where the plaintiff claimed to have been defamed by an article published on a local newspaper’s website, but did not file suit until more than three years after its publication. The appeals court declined to apply the discovery rule because a basic search engine query of his name produced the article. In such circumstances, the discovery rule did not apply because “a reasonable person in the plaintiff’s position” should have been aware that he or she had been injured by the article that appeared on a publicly accessible and easily accessible newspaper website. searched for.

Assessing how widespread the distribution of the models’ images was on social media, the SJC suggested that a relevant aspect was that the photos were published on the adult entertainment club’s Facebook page, a platform that apparently had more than a billion users in 2013. Other factors that might be weighed are where else the images appeared and how many people saw the images.

Explaining why they didn’t learn about the posts sooner, the models noted the difficulty of manually searching the 4,000 so-called “gentlemen’s clubs” and 70,000 nightclub websites they might be suspected of using abuse the images. They also pointed out that search engines do not search for images without names, as was their situation.

The US District Court did not ask the SJC whether the discovery rule applied to the specific facts of the designs case, and the SJC did not address it because it found the record before it incomplete as to the necessary facts. Critically, the record was incomplete as to when or how the plaintiffs actually learned about the posts on the nightclub’s Facebook page.

The court said that the later development of their answers to that question can obviously be determinative if they learned about the posts more than three years before the trial began. If the plaintiffs were not actually aware of the postings more than three years before the trial began, the court would still need to consider whether they reasonably should have known of the postings during that time to determine whether the discovery rule applies.

The SJC left it to the US district court to answer whether the ultimate question can be resolved as a matter of law or must be decided by a jury with the benefit of the full record before it.

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