The New Jersey Supreme Court’s recent opinion in Petro-Lubricant Testing Laboratories, Inc. v. Adelman left unanswered significant questions as to what constitutes a republication when corrections or modifications are made to an online publication, thereby retriggering the statute of limitations for defamation. In a 4-3 opinion, the majority established a test for whether a correction or modification is a republication that increases the likelihood that trial courts will deny summary judgment motions, leaving the question of republication for the jury. The practical effect of this will likely be far fewer corrections to online publications for fear of reviving or extending the applicable statute of limitations.
Specifically, the majority held that an online article is republished if an author makes a material and substantive change to the original defamatory article. According to the majority:
- A material change is one that relates to the defamatory content of the article at issue. It is not a technical website modification or the posting on the website of another article with no connection to the original defamatory article.
- A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article. It is not the mere reconfiguring of sentences or substitution of words that are not susceptible of conveying a new defamatory meaning to the article.
Applying this test to the case before it, the majority found that a number of the changes made to the article were minor and, consequently, did not constitute a republication. The Court reached a different conclusion with respect to the replacement of the phrase “[Wintermute] also allegedly forced workers to listen to and read white supremacist materials” with “John Wintermute also allegedly regularly subjected his employees to ‘anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants.’” The majority concluded that “[a]t the very least, genuine issues of fact are in dispute about whether the modification to the original article was substantive – that is, whether it injected a wholly new defamatory statement into the article.” The Court, however, held that because the changes made to the article quoted directly from a filed complaint, the Defendant was protected by the fair-report privilege. Therefore, the Court affirmed, as modified, the judgment of the Appellate Division dismissing Plaintiff’s defamation action.
Justice Solomon, in a concurring opinion joined by Chief Justice Rabner and Justice Timpone, disagreed that changes further delineating the term “white supremacist” created a question of fact as to whether there had been a republication. He also noted the chilling effect the majority’s opinion will have on the media, due to the threat of a trial on the merits in the event a court determines that there is a question of fact as to whether a change is material and substantive.
An unanswered question raised by the majority’s opinion is what statements in a “republished” article are subject to a new statute of limitations. For example, the Court found that many of the modifications made to the article at issue were minor and not substantively different than the original statements. However, the majority’s holding that there were questions of material fact as to whether the modification to the “white supremacist” statement constituted a republication, renders it unclear whether: (1) a new statute of limitations may be triggered as to all of the defamatory statements in the entire article, even though the defamatory meaning of the majority of those statements remained substantively the same since the original publication date; or (2) any re-triggering of the statute of limitations would be limited to only the newly inserted defamatory statement. Also unclear are the circumstances in which newly inserted defamatory statements are considered republications, as opposed to original publications of new defamatory material. For example the statement “John Wintermute also allegedly regularly subjected his employees to ‘anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants,” is arguably an instance of original publication of a new defamatory statement, not a republication.