An issue many clients bring to me goes this way. “I just found out about defamatory comments made about me two years ago. I can sue now, right?” Unfortunately, the answer is often no. There are exceptions, but they are specific and relatively few.
California law prescribes a time period in which a defamed person may sue of one (1) year from “publication,” i.e., the relaying of the defamatory information to at least one person other than the defamed one. This rule applies to disparaging statements in books, newspapers, and, in an online context to disparaging postings.
The applicable statute of limitations to sue for a tort — some form of “unlawful touching of another” — commences when the tort is committed. For example, if you see someone smash your windshield, you have a specific amount of time set by law in which to sue. That period begins at the moment the defendant smashes your window.
But there are situations where the “discovery rule” applies. As the California Supreme Court put it, “We have recognized that in some instances, the accrual of a cause of action in tort is delayed until the plaintiff discovered (or reasonably should have discovered or suspected) the factual basis for his or her claim.” Examples include medical malpractice, in which the delayed accrual of a cause of action is legally accepted because the expertise expected of a physician is beyond the capability of a layperson to evaluate, and the injured person may not have observed the doctor or surgeon’s application of the medical treatment.
The “discovery rule” typically applies when it is especially difficult for the plaintiff to see or understand the problem or where the injury itself (or its cause) is hidden or beyond what an ordinary person can be expected to understand. For example, if a defamatory statement is concealed in a person’s confidential personnel file, or where damaging credit is reported to credit-agency subscribers but not to the individual to whom the negative information pertains, the “discovery rule” applies.
However, as the Supreme Court also said, “When the basis for a claim has been published in the public record or has been the subject of publicity, several cases have declined to apply the discovery rule, commenting that the plaintiff may be expected to be sufficiently diligent to discover the basis for his or her claim within the statutory period.” And, “The discovery rule has not … been applied to postpone the accrual [beginning] of a cause of action based upon the publication of a defamatory statement contained in a book or newspaper. The same is true for online statements.
The author of a book published two years ago containing defamatory statements about a person cannot be sued today for defamation. The same is true of someone subjected to a libelous blog, article, or review posted on the Internet more than a year before she or he sees it.
So, while there are exceptions to the strict, one-year statutory period to sue for libel or slander, they are confined to situations where the information is hidden from the plaintiff or he or she cannot reasonably be expected to understand it.