When is a change in an internet blog post or content considered republication in San Diego or Los Angeles? Defendants in libel cases may view with interest a legal tactic that raises an issue of first-impression (never decided) in California. In the case, the plaintiff sued the defendant over an alleged, three-year old libel in an online business review. Because California’s one year statute of limitations had expired on the claim, the plaintiff interestingly asserted that, after the defendant was contacted by plaintiff’s attorney demanding a key word, “liar,” be removed from the post, the defendant removed the word – and thereby started a new statutory period of one year in which to bring the case. Because the defendant complied with the stated request for removal of the word “liar,” the cooperative defendant instantly created the option for the plaintiff successfully to sue him.
Although there are cases holding that a “modification” of an old post is a republication and creates a new claim, there are none holding removal of an ostensibly defamatory word has the same effect. This might seem a minor distinction but it may lead to a lengthy appeal or series of appeals. Setting aside the related question whether the plaintiff, in fairness, should be barred from profiting from his express demand being granted by the defendant, the thinking behind this potential policy approach remains questionable.
If an Internet poster of a review cannot later delete arguably defamatory word(s) without creating a new claim against him or her, why would anyone ever agree to delete a single word? And the defamed person, who might want only one or two key points removed from such an online statement, would have a much more difficult time convincing the supposed defamer to rectify the problem. This approach seems to lay the ground for more, not less, litigation. If such a policy is permitted by the courts, legislative intervention may have to combat its unfairness and counter-intuitive, negative effects.