Civil action commenced in the Superior
Court Department on June 12, 2015.
The case was heard by Shannon Frison, J.,
on a motion for summary judgment.
Steven C. Goldwyn for the plaintiff.
Jonathan M. Albano for the defendant.
WENDLANDT, J. In libel cases, the general rule is that the
cause of action accrues, and the statute of limitations begins to run, on the
date of the publication of the alleged defamatory statement. See Flynn v. Associated Press, 401 Mass. 776,
780 (1988). In this appeal, we apply the
statute of limitations to a defamatory statement posted on a newspaper's
website. We hold that such Internet
postings are subject to the single publication rule, which governs other types
of aggregate communications. Under the
rule, a person may bring one (and only one) cause of action for defamation
against the publisher based on its publication of the defamatory
statement. The statute of limitations
for the action begins to accrue when the statement first is posted on the
website. We also hold that where (as
here) the website is widely and publicly available and not maintained
confidential, the discovery rule does not apply. Applying these principles to the defamatory
articles in this case, we conclude that the plaintiff's claim is time barred as
to the first publication. With regard to
the second publication, the alleged defamatory statements about the plaintiff's
arrest are governed by the fair report privilege. Accordingly, we affirm the allowance of
summary judgment in favor of the defendant.
Background. The plaintiff, Robert Wolsfelt, brought
claims against the defendant, Gloucester Times, for its defamatory
articles. The articles concern two
separate incidents of domestic violence, each of which resulted in Wolsfelt's
Article one. The first incident occurred on November 30,
2011. The Gloucester Police
Department received a 911 call from Wolsfelt who claimed he was injured after
his fiancée pushed him down the stairs. En
route to the scene, the officers were notified that the fiancée had also called
the police, stating that she had locked herself in the bathroom in fear of
Wolsfelt. After the officers arrived,
the fiancée told the officers that Wolsfelt called her earlier from a bar where
he had been drinking; she told him not to return home. Nonetheless, Wolsfelt (in an intoxicated
state) returned home. He rummaged
through her pocketbook, and when she told him to stop, he grabbed her by the
throat. Officers noticed that she had
red marks on her neck. She pushed him,
causing him to fall down the stairs.
Wolsfelt was transported to a hospital
where he relayed a different version of the events. He stated that while retrieving his computer,
his fiancée pushed him down the stairs.
In response to questions regarding the red marks on his fiancée's neck,
Wolsfelt posited that the marks may have been left when the fiancée was
wrestling with her children. After
Wolsfelt was released from the hospital, he was arrested and charged with
domestic assault and battery. On the
same day, Gloucester Times published an article online regarding this incident
(article one). Article one, entitled
"Gloucester Police/Fire: City man
charged in domestic assault," largely tracked the police report.
On February 17, 2012, a "general
continuance" with a "no abuse" order was entered in Wolsfelt's
criminal case. Gloucester Times
updated article one on its website, stating "[t]he charge of assault and
battery brought against Robert Wolsfeld [sic] was continued without a finding
on Feb. 17, 2012" (article one update).
The article one update appeared above the original article one, which
was set forth in full on the same page.
Article two. The second incident occurred less than one year
later, during the late hours of June 7, 2012.
The Gloucester Police Department received a 911 call from the fiancée,
alleging that Wolsfelt was attempting to harm her, and that knives were present
in the area. En route to the scene, the
officers received a call from Wolsfelt and directed him to remain outside. When the officers arrived at the scene,
Wolsfelt was sitting outside of the residence, apparently intoxicated. He stated that he had an argument with his
fiancée, and when she called the police, he tried to take the telephone from
her. Wolsfelt admitted that, during the
ensuing fight, he pushed her. His
fiancée was also interviewed by the officers; she reiterated Wolsfelt's
account, providing a few more details.
Wolsfelt was arrested and charged with, inter alia, domestic assault and
battery. On June 8, 2012, Gloucester
Times published an article online regarding this incident (article two). Article two, entitled "Gloucester
Police/Fire: Lanesville man charged in
domestic assault," largely tracked the police report.
On February 19, 2013, Wolsfelt admitted to
sufficient facts, and a continuance without a finding (CWOF) was entered. Gloucester Times posted an update to article
two, stating "[t]he charge of assault and battery brought against Robert
Wolsfeld [sic] was continued without a finding for 18 months on Feb. 19,
2013" (article two update). The
article two update appeared at the top of the webpage, just above article two,
which was set forth in full.
Wolsfelt's discovery of the articles. Wolsfelt did not learn about the articles
until February 2013, when he applied for a job.
On June 12, 2015, Wolsfelt brought an action against Gloucester Times
for defamation and injunctive relief seeking removal of the two articles, along
with their respective updates. He
asserted that the articles contained "untrue, incomplete, misleading[,]
and damaging assertions," resulting in harm that included loss of
reputation and potential employment. The
filing date of the complaint was more than three years after article one, the
article one update, and article two first were posted online; however, it was
less than three years after the publication of the article two update. Gloucester Times moved for summary judgment,
which a Superior Court judge allowed on the basis that Wolsfelt's claims were
time-barred and, in any event, the articles were protected under the fair
Discussion. "The standard of review of a grant of
summary judgment is whether, viewing the evidence in the light most favorable
to the nonmoving party, all material facts have been established and the moving
party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410
Mass. 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824
(1974). Summary judgment "make[s]
possible the prompt disposition of controversies on their merits without a
trial, if in essence there is no real dispute as to the salient facts or if
only a question of law is involved" (citation omitted). Kourouvacilis v. General Motors Corp., 410
Mass. 706, 715 (1991). Where the
nonmovant bears the burden of proof at trial, the moving party "is
entitled to summary judgment if [it] demonstrates . . . that [the
nonmovant] has no reasonable expectation of proving an essential element of
[his] case" (citation omitted).
Butcher v. University of Mass., 483 Mass. 742, 747 (2019), cert. denied
sub nom. Butcher v. Vishniac,
S. Ct. (2020). Our review is de novo. See LeBlanc v. Logan Hilton Joint Venture,
463 Mass. 316, 318 (2012).
Statute of limitations. We turn
first to the question whether Wolsfelt's complaint for defamation was filed
within the statute of limitations. An
action for defamation must be commenced within three years after the cause of
action accrues. G. L. c. 260,
§ 4. "In defamation cases,
'the general rule is that the cause of action accrues, and the statute of
limitations begins to run, on publication of the defamatory statement.' A statement is published when it is
communicated to a third party."
Harrington v. Costello, 467 Mass. 720, 725 (2014), quoting Flynn, 401
Mass. at 780. Where a defendant raises
the statute of limitations as an affirmative defense, the plaintiff bears the
burden of proving the action was timely commenced. Parr v. Rosenthal, 475 Mass. 368, 376 (2016).
Article one and update. With
regard to article one and the article one update, Wolsfelt filed his complaint
more than three years after publication of the alleged defamatory statements on
the defendant's website. Accordingly,
Wolsfelt "has the burden of establishing facts that take him outside the
statutory three-year limitations period."
Harrington, 467 Mass. at 725.
Single publication rule. Wolsfelt
first appears to argue that each time a third party accessed the website on
which article one and its update were posted, a new communication occurs, and
thus the statute of limitations has not run so long as article one and its
update "remain on the Internet."
Concluding that the single publication rule applies, we disagree.
Under the common law, each separate
communication of a defamatory statement to a third party gave rise to a new
cause of action. See Restatement
(Second) of Torts § 577A(1) (1977).
The single publication rule addresses the treatment of an aggregate
communication of a defamatory statement as occurs when, for example, a
statement is made to a crowd, broadcast by television or radio, or printed in a
newspaper or book. Under the rule, the
publication of a defamatory statement in this aggregate manner is, in legal
effect, one publication, although such publication is received by multiple
third parties at the same time or consists of many copies widely
distributed. See Bigelow v. Sprague, 140
Mass. 425, 427-428 (1886) ("all the several deliveries [of the defamatory
pamphlet] made by [the defendant] were to be treated as substantiating the
allegation of a [single] publication. . . . [F]or, if each delivery of a copy is to be
dealt with only[,] and for all purposes[,] as a separate publication, courts
could not distinguish between publication in a newspaper and in a private
letter. A closer analogy . . .
would seem to be that of an oral slander addressed to a crowd").
Rather than each copy giving rise to a
separate cause of action, the single publication rule treats the aggregate
communication as one publication that gives rise to one and only one cause of
action. See Restatement (Second) of
Torts § 577A(4). The statute of
limitations for the single action runs from the point at which the original
dissemination occurred. See Flynn, 401
Mass. at 780 (in libel cases, statute of limitations begins to run on date of
The single publication rule is founded on
two considerations. First, "[t]he
rule is justified by the necessity of protecting defendants and the courts from
the numerous suits that might be brought for the same words if each person
reached by such a large-scale communication could serve as the foundation for a
new action." Restatement (Second)
of Torts § 577A comment c, at 209.
A contrary rule -- one that would permit a new cause of action for each
third party who receives the communication to restart the limitations period --
would thwart the repose intended by the Legislature in establishing a statute
of limitations in the first place. See
Firth v. State, 98 N.Y.2d 365, 369 (2002).
Second, the single publication rule inures
to the benefit of the allegedly defamed party, who may recover all damages
stemming from the multiple copies of the publication in the one action. See Bigelow, 140 Mass. at 427 ("when a
libel is printed in an edition of many copies for general circulation, the
extent of the circulation procured or caused by the publisher may be shown
against him as evidence of the injury to the person libeled"). See also Firth, 98 N.Y.2d at 370 ("the
single publication rule actually reduces the possibility of hardship to
plaintiffs by allowing the collection of all damages in one case commenced in a
These considerations counsel in favor of
applying the single publication rule to Internet publications. The Internet (when coupled with a robust
search engine) comprises a platform for instantaneous, worldwide communications
to a multitude of readers across geographies, often for an indefinite period of
time. See Firth, 98 N.Y.2d at 370,
citing Reno v. American Civ. Liberties Union, 521 U.S. 844, 853 (1997)
(policies impelling original adoption of single publication rule "are even
more cogent when considered in connection with the exponential growth of the
instantaneous, worldwide ability to communicate through the
Internet"). Permitting a separate
cause of action for each "hit" or viewing of defamatory statement by
a third party on the Internet "would implicate an even greater potential
for endless retriggering of the statute of limitations, multiplicity of suits
and harassment of defendants.
Inevitably, there would be a serious inhibitory effect on the open,
pervasive dissemination of information and ideas over the Internet, which is,
of course, its greatest beneficial promise." Firth, supra.
See Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013)
("excluding the Internet from the single-publication rule would eviscerate
the statute of limitations and expose online publishers to potentially
limitless liability"). At the same
time, the single publication rule permits a plaintiff to recover, in one suit,
all damages stemming from the allegedly defamatory statement instead of filing
separate suits each time a third party accesses the webpage containing the
defamatory content. See Bigelow, 140
Mass. at 427; Firth, supra.
For these reasons, "[e]very state
court that has considered the question applies the single-publication rule to
information online." Pippen, 734
F.3d at 615, citing Christoff v. Nestlé USA, Inc., 47 Cal. 4th 468 (2009);
Churchill v. State, 378 N.J. Super. 471 (App. Div. 2005); Woodhull v. Meinel,
145 N.M. 533 (App. 2008); Firth, 98 N.Y.2d 365; T.S. v. Plain Dealer, 194 Ohio
App. 3d 30 (2011); Kaufman v. Islamic Soc'y of Arlington, 291 S.W.3d 130 (Tex.
App. 2009); Ladd v. Uecker, 323 Wis. 2d 798 (App. 2010). Additionally,
Federal courts considering the question have concluded that the relevant State
supreme court would agree. Accordingly,
we now join those jurisdictions and extend the single publication rule to
articles posted to an online media's publicly available website.
Discovery rule. Wolsfelt next
argues that the discovery rule tolled the statute of limitations for article
one and its update because he did not learn about the publications until
February 2013, when he applied for a job.
The discovery rule tolls the statute of limitations period for certain
causes of action such that the action does not "accrue" (and hence
the limitations does not start) until "the plaintiff learns, or reasonably
should have learned, that he has been harmed by the defendant's conduct"
(citation omitted). Flynn, 401 Mass. at
781 (collecting cases). The rule
"applies only to 'inherently unknowable' causes of action." Id., quoting White v. Peabody Constr. Co.,
386 Mass. 121, 130 (1982). By contrast,
where an alleged defamatory publication is broadly circulated to the public,
and did not involve concealment or confidential communications, the discovery
rule does not apply. See Harrington, 467
Mass. at 727 n.10; Flynn, supra at 781-782 & n.7. Thus, in Flynn, supra at 781, the court held
that the discovery rule does not toll the statute of limitations for defamatory
statements in a printed newspaper widely available to the public. See Fleury v. Harper & Row, Publs., Inc.,
698 F.2d 1022, 1028 n.4 (9th Cir. 1983) (discovery rule inapplicable to book
publication announced in nationally distributed magazine widely available to
public as it was not confidential document nor concealed).
The same reasoning precludes application
of the discovery rule in the present case.
In particular, the record does not establish that Wolsfelt's cause of
action was inherently unknowable on November 30, 2011, when article one
published or on February 17, 2012, when the update published. Wolsfelt does not allege that the article or
the update were concealed or confidential.
To the contrary, Wolsfelt admits that the article and the update were
publicly available on the Gloucester Times' website and that a search engine
query with his name produces the article and update as a result. Accordingly, Wolsfelt's claims for defamation
regarding article one and its update, brought on June 12, 2015, are time
b. Article two and update. Wolsfelt argues that article two, which was
published on June 8, 2012, and was updated on February 19, 2013, stands on
different footing in light of the republication exception to the single
publication rule. Specifically, the single
publication rule applies only to the first release of a defamatory statement;
under the republication exception, "[a]ny future republication of the
[alleged] false statements . . . could form the basis for a new cause
of action against the republisher."
Flynn, 401 Mass. at 780 n.5.
Thus, republishing material, editing and reissuing material, or placing
it in a new form that includes the defamatory material, can create a new cause
of action, which begins to run on the date of republication. See Restatement (Second) of Torts § 577A
comment d, at 210 ("the single publication rule . . . does not
include separate aggregate publications on different occasions"). Wolsfelt contends that the article two update
acted as a republication of article two.
We need not decide whether the placement of the article two update on
the same webpage and just above the text of article two republished article two
because, even assuming arguendo that it did, the statements in article two fall
within the fair report privilege.
Fair report privilege. "The
fair report privilege establishes a safe harbor for those who report on
statements and actions so long as the statements or actions are official and so
long as the report about them is fair and accurate." Howell v. Enterprise Publ. Co., 455 Mass.
641, 651 (2010). See Butcher, 483 Mass.
at 750. (discussing history of fair report privilege). Where, as here, police undertake an official
response to a complaint, such as an arrest, both that response and the
allegations that gave rise to it fall within the privilege. See Jones v. Taibbi, 400 Mass. 786, 795
(1987) ("The publication of the fact that one has been arrested, and upon
what accusation, is not actionable, if true" [citation omitted]). Wolsfelt does not contest that he was
arrested as reported by article two.
Nonetheless, he asserts that the omission of certain details strips the
article of the protections afforded by the fair report privilege.
"[A] report need give only a
rough-and-ready summary that was substantially correct in order to qualify for
the fair report privilege. A statement
is considered a fair report if its gist or sting is true, that is, if it
produces the same effect on the mind of the recipient which the precise truth
would have produced" (quotations and citation omitted). ELM Med. Lab., Inc. v. RKO Gen., Inc., 403
Mass. 779, 783 (1989). Article two
tracks almost precisely the police report of Wolsfelt's arrest. Wolsfelt complains only that it left out the
detail that his lip was bleeding, that the fiancée later accused him not only
of shoving her but also of choking her, and that Gloucester Times did not
interview him to obtain "his side" for the publication. None of these affect the application of the
privilege; the gist and sting of article two is the same without these
details. Wolsfelt, who was intoxicated
at the time, was arrested for assault and battery after his fiancée, whom he
admitted shoving, called the police.
Nothing more was required to provide the "rough-and-ready summary"
that is protected by the fair report privilege. Id.
 Justice McDonough participated in the
deliberation on this case while an Associate Justice of this court, prior to
his reappointment as an Associate Justice of the Superior Court.
 We recite the facts as set forth in
the police reports for each arrest.
 The fiancée did not seek a restraining
 The charge was dismissed on May 18,
 The charge was dismissed on August 19,
 See also Restatement (Second) of Torts
§ 577A(3), at 208 ("Any one edition of a book or newspaper, or any
one radio or television broadcast, exhibition of a motion picture or similar
aggregate communication is a single publication").
 See also Firth v. State, 98 N.Y.2d
365, 369 (2002) (under single publication rule, statute of limitations runs
from date of first publication).
 See Christoff v. Nestlé USA, Inc., 47
Cal. 4th 468, 478 (2009) (common-law multiple publications rule "had the
potential to subject the publishers of books and newspapers to lawsuits stating
hundreds, thousands, or even millions of causes of action for a single issue of
a periodical or edition of a book" [citation omitted]).
 See Simon v. Arizona Bd. of Regents,
28 Media L. Rep. (BNA) 1240 (Ariz. Super. Ct. 1999); Traditional Cat Ass'n v.
Gilbreath, 118 Cal. App. 4th 392 (2004); McCandliss v. Cox Enters., Inc., 265
Ga. App. 377 (2004), overruled on other grounds by Infinite Energy, Inc. v.
Pardue, 310 Ga. App. 355, 363 (2011).
 See Pippen, 734 F.3d at 615, citing
Shepard v. TheHuffingtonPost.com, Inc., 509 Fed. Appx. 556 (8th Cir. 2013)
(Minnesota law); In re Philadelphia Newspapers, LLC, 690 F.3d 161, 174–175 (3d
Cir. 2012) (Pennsylvania law). See also
Kiebala v. Boris, 928 F.3d 680, 686 (7th Cir. 2019) (Illinois law); Nationwide
Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007) (Texas
law); Jankovic v. International Crisis Group, 494 F.3d 1080, 1087 (D.C. Cir.
2007) (District of Columbia law); Van Buskirk v. New York Times Co., 325 F.3d
87, 89-90 (2d Cir. 2003) (New York law); Lane v. Strang Communications Co., 297
F.Supp. 2d 897 (N.D. Miss. 2003) (Mississippi law); Mitan v. Davis, 243 F.Supp.
2d 719 (W.D. Ky. 2003) (Kentucky law).
 Wolsfelt cites to no authority
declining to extend the single publication rule to Internet publications; and
the only case we have located declining to apply the single publication rule to
an Internet publication addressed a set of confidential electronic
communications with limited accessibility that was different in kind from the
type of mass communication presented here.
See Swafford v. Memphis Individual Practice Ass'n, Tenn. Ct. App., No.
02A01-9612-CV-00311 (June 2, 1998) (where defamatory statements from electronic
database were confidentially maintained and communicated only in response to
member request, single publication rule did not apply).
 As courts in other jurisdictions have
noted, the application of the republication exception is complicated with
regard to Internet publications because many websites "are in a constant
state of change, with information posted sequentially on a frequent
basis." Firth, 98 N.Y.2d at 371. Application of the republication exception to
any change of a website would, in the context of the Internet, foil the single
publication rule, "discourag[ing] the placement of information on the
Internet or slow[ing] the exchange of such information, reducing the Internet's
unique advantages [and] . . . forc[ing a publisher] either to avoid
posting on a Web site or [to] use a separate site for each new piece of
information." Id. at 372. These courts have held that minor or nonsubstantive
changes to an Internet posting do not fall within the republication exception,
but substantive changes may. Compare
Kiebala v. Boris, 928 F.3d 680, 686-688 (7th Cir. 2019) (republication doctrine
did not apply where defendant did not change substance of original post but
only updated date on website); In re Philadelphia Newspapers, LLC, 690 F.3d
161, 175 (3d Cir. 2012) (neither hyperlink nor reference to defamatory material
fell within republication exception); Jankovic v. International Crisis Group,
494 F.3d 1080, 1088 (D.C. Cir. 2007) (online posting of previously printed
report without updating content did not fall within republication exception);
Canatella v. Van De Kamp, 486 F.3d 1128, 1135-1136 (9th Cir. 2007) (no
republication where defendant publishers changed Internet address of original
post containing defamatory statement but content remained unchanged); Salyer v.
Southern Poverty Law Ctr., Inc., 701 F.Supp. 2d 912, 916-917 (W.D. Ky. 2009)
(website articles that referenced original defamatory article did not fall
within republication exception because they merely called existence of article
to attention of new audience and did not present defamatory content of article
to audience); Firth, 98 N.Y.2d at 371 ("mere addition of unrelated
information to a Web site [that had a defamatory statement as to which the statute
of limitations has run] cannot be equated with the repetition of defamatory
matter in a separately published edition of a book or newspaper . . .
for it is not reasonably inferable that the addition was made either with the
intent or the result of communicating the earlier and separate defamatory
information to a new audience"), with Yeager v. Bowlin, 693 F.3d 1076,
1082 (9th Cir. 2012) (adding substantive information regarding plaintiffs to
website may create new cause of action under republication exception).
 Wolsfelt does not claim the article
two update was defamatory.
 Wolsfelt also contends that
statements in article two concerning separate incidents unrelated to Wolsfelt
were "prejudicial inaccuracies" and harmful because the article did
not indicate expressly that there were separate crimes, unrelated to
Wolsfelt. No reasonable reading of
article two fairly suggests that these distinct incidents, which are expressly
described as involving different occurrences at different residences, concerned
Wolsfelt. See New England
Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471,