The New Jersey Supreme Court recently held, in Petro-Lubricant Testing Laboratories, Inc. v. Adelman, that New Jersey’s one-year statute of limitations for defamation claims restarts if an online article’s author materially and substantively changes the article’s content. Although the case was ultimately dismissed on different grounds, this decision serves as a reminder that modifying online articles can restart the clock for potential defamation plaintiffs.
This case arises out of Asher Adelman’s website, eBossWatch.com. The website gathered information about employers to give job seekers insight into what it would be like to work for them. In 2010, Adelman posted an article on that website, reporting on allegations contained in a civil employment discrimination complaint filed against Petro-Lubricant Testing Laboratories and one of its executives, John Wintermute. Adelman also included Wintermute and a hyperlink to the article in an online list of “America’s Worst Bosses 2010.”
In December 2011, Wintermute’s counsel wrote to Adelman, claiming that the article was false and defamatory, demanding the removal of the article from the website and the removal of Adelman’s name from the worst bosses list, and threatening to sue. In response, Adelman revised the article to make clearer that it was reporting allegations made in a lawsuit. Petro-Lubricant and Wintermute nonetheless sued for defamation in June 2012 — within a year of Adelman’s revisions to the article, but more than a year after Adelman originally posted the article and the worst bosses list.
Adelman ultimately moved for summary judgment, arguing, among other things, that New Jersey’s one-year statute of limitations barred any claim. While the trial court granted summary judgment on other grounds, the court rejected Adelman’s statute of limitations argument, finding that his December 2011 modification of the online article constituted a republication and therefore triggered a new one-year statute of limitations. On review, the New Jersey Appellate Division disagreed, holding that any modifications by Adelman were insufficient to constitute a republication of the original online article and that the statute of limitations thus required dismissal. The Appellate Division emphasized that, in revising the original article, Adelman had intended to diminish its “defamatory sting.”
New Jersey Supreme Court’s Decision
In Petro-Lubricant, the New Jersey Supreme Court reversed the Appellate Division’s holding and announced the following standard for determining whether changes to an online publication constitute a republication and therefore restart the statute of limitations:
“A republication occurs to an online publication if an author makes a material and substantive change to the original defamatory article.”
“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 standard, the court found as a matter of law that the following modifications by Adelman were not “material and substantive”:
minor alterations to the article’s title
removing a photograph of Petro-Lubricant’s sign
changing a description of Wintermute from “a violent, raging drunk” to a “dangerous and violent alcoholic.”
On the other hand, the court found that there were genuine issues of fact as to whether the following modification was “material and substantive”:
changing the statement that Wintermute “allegedly forced workers to listen to and read white supremacist materials” to Wintermute “allegedly regularly subjected his employees to ‘anti-religion, anti-minority, anti-Jewish, anti-[C]atholic, anti-gay rants,’” the latter of which quoted directly from the underlying discrimination complaint.
The court held that this modification was “material” because it “relat[ed] to the article’s defamatory content.” And the court found that there were genuine issues of material fact as to whether the modification was “substantive” because a reasonable person might think that, by replacing “white supremacist” with “anti-religion, anti-minority, anti-Jewish, anti-Catholic, anti-gay,” Adelman “injected a wholly new defamatory statement into the article.” In the court’s view, “a [r]easonable person might not believe that all white supremacists hold anti-religious or anti-gay views.”
Notably, the court expressly rejected the Appellate Division’s finding that Adelman’s intent to “lessen the defamatory sting” of the article was relevant in analyzing whether his online modifications were “material and substantive.” As the Supreme Court succinctly stated, “[g]ood intentions, without more, do not diminish the impact that defamatory words have on undermining another’s reputation.”
Thus, because there were genuine issues of material fact as to whether Adelman’s modifications were “material and substantive,” New Jersey’s statute of limitations did not bar the plaintiff’s claims.
Going forward, those posting online content should be aware that making a “material and substantive” change to the online version of an article can restart the statute of limitations on a defamation claim in New Jersey. We will continue to monitor developments in the law, especially as lower courts apply this “material and substantive change” standard.