Blog Defamation And The Discovery Rule: Do Plaintiffs Have Constructive Knowledge Of The Entire Internet?

As The Legal Intelligencer reported Friday:

Aviation lawyer and seasoned pilot Arthur Alan Wolk knows quite a bit about the stratosphere and the troposphere, but he may have learned something new this week about the blogosphere when a federal judge tossed out his libel suit against the bloggers at Overlawyered.com.

As U.S. District Judge Mary A. McLaughlin sees it, a blog is legally the same as any other “mass media,” meaning that any libel lawsuit filed against a blog in Pennsylvania must make its way to court within one year.

Wolk was hoping for a break on the strict time limit. His lawyers — Paul R. Rosen and Andrew J. DeFalco of Spector Gadon & Rosen — argued that the “discovery rule” should apply to toll the statute of limitations until the target of an allegedly libelous blog entry discovers it.

I suppose I should disclose a few things: I respect Walter Olson, proprietor of Overlawyered. Despite being a tort reformer, he’s considered a class act even by some plaintiff’s lawyers, and he’s linked to me a few times, despite our strongly differing views of the civil justice system. I also respect Arthur Alan Wolk. He’s a major supporter (in terms of money and time) of my alma mater, and I’ve heard nothing but good things about him and his practice.

No hard feelings to anyone. I call them like I see them.

Justia has the bulk of the docket online; the supplemental briefing on the motion to dismiss is the most pertinent. There, Rosen argued:

While “Overlawyered” does claim to have a substantial following, the primary harm from the defamation in this case is caused not by the initial publication, but by the fact that the website, while not being readily available on the street-corner, appears on a “Google” search to defame the Plaintiff to potential clients who would be dissuaded from retaining him. Wolk himself, however, had no reason to perform such a Google search on himself.

On the one hand, there’s a certain elegance to this argument, and I have many times argued similar points (though never under facts like the facts here) while trying to benefit from the discovery rule.

If we perform a reductio ad absurdum on the court’s holding in this case, we end up concluding that Wolk — and everyone else — is presumed by the law to have constructive knowledge of everything written about them on the internet. Worse, that constructive knowledge forms in real-time: a plaintiff must file suit within one-year of the initial publication on the internet.

That is, to say the least, disturbing. Are we all supposed to scour the internet on an annual basis for defamatory references or be forever barred from protesting?

The problem for Wolk’s argument, however, comes in the sentences which bookend the prior quote:

[T]he reasoning employed in the so-called “mass media” cases does not apply to this case. Wolk could not walk to his corner newstand, pick up a newspaper and read of the defamation. Wolk could not look at a supermarket magazine isle and see his picture.

Thus, the defamation in this case is different in-kind than the so-called “mass media” publications. The internet, and this blog, are a different medium, the harm is different in kind than that which arises from print media, and the two should not be treated in the same manner.

I don’t think that holds up. If anything, it is easier to monitor your reputation on the internet than your reputation on other forms of mass media. From anywhere in the world, at any time of day, you can Google, Yahoo!, Bing, or Ask your own name. You can even create Google Alerts to alert you, real-time, about your reputation — more than once, I have learned of a publication that mentioned me only by way of Google Alerts.

In contrast, it’s actually quite hard to set up a keyword alert that hits all of the relevant mass media outlets. Many newspapers close off their archives past a certain point. Try doing a search of all the major and regional TV stations. Or one with all of the radio stations.

For all I know, Walter Olson goes on PM Style every week, talks sunglasses with Joan Rivers, and then questions my ethics. Maybe Olson’s got an AM radio station in his backyard that alternates Lady Gaga with accusations that I raided my client’s funds.

How would I know?

Yet, in both instances, there is generally no doubt that the statute of limitations for defamation would be one year. The message was out there, I just didn’t hear it in time.

Is that fair? Maybe not. But it’s the law for other media, and there’s little reason to apply it differently to the internet, where it is far easier to discover the defamation. Since the day Overlawyered first published that post, it has been indexed by Google, awaiting discovery via a Google search, which is how Wolk indeed found it.

To wit: Google never forgets and never forget to Google.

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