How Social Media Complicates Defamation Claims and How to Handle Them

Five professional models who sued long after a state’s three year statute of limitations expired may pursue their defamation claims against an adult entertainment nightclub for posting their images to the giant social media site Facebook without their permission.

However, the models must prove that they did not know and reasonably should not be expected to have known about the postings sooner than they did.

The Massachusetts Supreme Judicial Court (SJC) has decided that the traditional rule that a defamation claim accrues and the statute of limitations begins to run when the allegedly defamatory content is published in print or on the Internet should be adjusted when the content is posted in the “vast” social media universe based on how knowable the content is.

According to the SJC, the answer to when someone knew or reasonably should have known about a social media post requires a “highly fact-specific inquiry” into “the totality of the circumstances” including the distribution, searchability and accessibility of the social media postings.

At the request of the U.S. District Court for Massachusetts, the SJC was addressing for the first time when a claim for defamation begins to accrue in Massachusetts cases involving content on social media.

Five Models

The five models allege that the owner of Club Alex’s Adult Entertainment improperly used their images in social media posts to promote the club between 2013 and 2015. The models filed suit in federal district court alleging defamation and other related tort claims, but not until 2021 — well outside the three-year limitations period.

Massachusetts law says tort claims must be “commenced only within three years next after the cause of action accrues.” As a general matter, a cause of action sounding in tort accrues on the date the plaintiff suffers an injury.

However, the SJC noted that the state has recognized the “unfairness of a rule that holds that the statute of limitations has run even before a plaintiff knew or reasonably should have known that she may have been harmed by the conduct of another.” To combat this unfairness, the court has adopted a common-law “discovery rule” for the purpose of determining when a cause of action accrues, and thus when the statute of limitations starts to run.

The models argued for application of the discovery rule to their situation, thereby preventing the running of the limitations period until they knew or reasonably should have known that they had been harmed by the alleged tortfeasor.

Novel Question

The federal district court recognized that the question of whether the discovery rule applies in defamation cases involving social media was a novel question. Therefore, the district court asked the SJC to answer the following:

“Under what circumstances, if any, is material publicly posted to social media platforms ‘inherently unknowable’ for purposes of applying the discovery rule in the context of defamation, right of publicity, right to privacy and related tort claims?”

“Inherently unknowable” refers to whether a person knew or should have known about the content.

The SJC answered the question by first noting that in Massachusetts the discovery rule does indeed apply to defamation and other tort claims: “Claims for defamation, violation of the right to privacy, violation of the right of publicity, and related claims that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, he or she has been harmed by the defendant’s publication of that material.”

The SJC continued, setting forth for the first time how the rule should work in social media context:

“Given how ‘vast’ the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting.”

The SJC concluded that “application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant’s post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.”

Complicated Analysis

The SJC recognized that social media platforms complicate the discovery rule analysis in that the inquiry involves whether the publication is broadly circulated to the public. The court has in the past held that the discovery rule did not apply to a public libel printed in a newspaper widely available in the plaintiff’s hometown. This position — that the discovery rule will not affect statutes of limitations in the context of widely published statements in print media — is accepted in Massachusetts and many other jurisdictions, according to the SJC.

More recently, the state’s appeals court considered the discovery rule in the context of the Internet where the plaintiff argued that he was defamed by an article published on a local newspaper’s website, but he did not bring suit until over three years after its publication. The appeals court declined to apply the discovery rule because a basic search engine query with his name produced the article. In such circumstances, the discovery rule did not apply because “a reasonable person in the position of the plaintiff” should have been aware that he or she was harmed by the article appearing on a publicly accessible and readily searchable newspaper website.

In evaluating how widespread the distribution of the models’ images was on social media, the SJC suggested that a relevant consideration is the fact that the photographs were published on the adult entertainment club’s Facebook page, a platform that apparently had over one billion users in 2013. Other factors that might be weighed are where else the images appeared and how many people viewed the images.

In explaining why they did not learn about the postings sooner, the models noted the difficulty of manually searching the estimated 4,000 so-called “gentlemen’s club” and 70,000 nightclub websites that might be suspected of misusing the images. They also pointed out that search engines do not search images without names, as was their situation.

The U.S. district court did not ask the SJC whether the discovery rule applied on the specific facts of the models’ case, and the SJC did not address that because it found that the record before it was incomplete in terms of the facts needed. Critically, the record was incomplete regarding when or how the plaintiffs actually learned of the postings on the nightclub’s Facebook page.

The court said that further development of their answers to that question may obviously be determinative if they learned of the postings more than three years prior to commencing suit. If the plaintiffs did not actually know of the postings more than three years prior to commencing suit, the court would then still have to address whether they reasonably should have known of the postings within that period to determine whether the discovery rule applies.

The SJC left to the U.S. district court to answer whether the ultimate question can be resolved as a matter of law or must be decided by a jury with the benefit of the full record before it.

Topics Claims