The statute of limitations for defamation claims in Virginia is just one year from the date of publication. “Publication” in this context refers to the communication of the defamatory statement to a third party. A person who repeats a defamatory statement originally made by someone else can sometimes be held liable for republishing the statement. That republication would constitute a new defamation claim and trigger a new one-year period under the statute of limitations. Republication liability, however, generally requires some evidence that the person repeating the defamation is vouching for the statement’s accuracy or adopting it as his/her own. Merely sharing someone else’s defamatory statement, without adding to it in some way or directing it to a new audience, will usually not give rise to defamation liability and will therefore not extend the statute of limitations beyond one year from the original publication.
In the Lokhova v. Halper case I wrote about last year, the plaintiff sued The New York Times and other publications roughly two years after they published articles about her that she believed were defamatory. She argued that her claim was not time-barred because several people had tweeted links to the articles in question within the 12-month period prior to her filing of the lawsuit. The court rejected her argument and dismissed the case, finding that merely sharing an article with others does not necessarily amount to republication. The article was already on the internet. Re-tweeting it, opined the court, is the equivalent of sharing a hard-copy book or magazine with another person. Doing so does not amount to a new publication that would trigger a new one-year period within which a defamation claim might be brought.
Yesterday, the Lynchburg Division of the Western District of Virginia issued an opinion in which the same “retweeting = republication” approach was used by the plaintiff to try to get around the statute of limitations. Again, the approach failed.
The case of Benjamin Crosswhite v. Reuters News & Media, Inc. involved a defamation claim brought by the personal trainer who was the subject of an article entitled “Exclusive: Falwell Steered Liberty University land deal benefiting his personal trainer” and who was also mentioned in an article entitled, “Exclusive: Falwell Blasted Liberty Student as ‘Retarded,’ Police Chief as ‘Half-Wit’ in Emails.” According to the opinion, the first article “reported on real estate transactions between Liberty University and Crosswhite that were approved by” Jerry Falwell, Jr., the former president of Liberty University. The second article stated that Falwell “has been dogged by recent stories about his private dealings and his stewardship of Liberty,” including “his role in steering a $1.2 million piece of university property to his personal fitness trainer. On August 27, Reuters reported how Falwell had helped his young personal trainer, Benjamin Crosswhite.”
The first article was published on August 27, 2019. The second article was published on September 12, 2019. The lawsuit was filed over a year later, on March 25, 2021.
Crosswhite argued that his lawsuit was timely due to various retweets and hyperlinks that had been published in shared in the 12 months preceding the lawsuit. The court disagreed, relying heavily on the Lokhova decision (which was affirmed on appeal and is now Fourth Circuit precedent, binding in Virginia). “The public policy supporting the single publication rule and the traditional principles of republication dictate that a mere hyperlink, without more, cannot constitute republication,” the court held (quoting Lokhova).
Crosswhite claimed there was more. In particular, he pointed out, was an August 2020 tweet from Reuters employee Lawrence Delevingne where Mr. Delevingne wrote, “Other great reporting on Falwell & Liberty U. by @AramRoston @jschney” and linked to the August 2019 article. This tweet evidenced an intent to share the original story with new audiences, his argument went. The court was unconvinced, noting that “the subsequent publication did not add or alter the original publication.” The tweet merely commented that the original reporting was “great.” That’s it. And that’s not enough to create liability for republication.
The court concluded that the statute of limitations had expired under the single-publication rule and dismissed the case with prejudice.