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Solomon v. Gannett Co., Inc.

Superior Court of New Jersey, Appellate Division

June 26, 2013

BRIAN SOLOMON, Plaintiff-Appellant,
GANNETT COMPANY, INC., Defendant-Respondent.


Argued April 17, 2013

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, Docket No. L-1260-12.

Brian Solomon, appellant, argued the cause pro se.

Lauren James-Weir argued the cause for respondent (Gibbons P.C., attorneys; Thomas J. Cafferty, of counsel and on the brief; Ms. James-Weir, on the brief).

Before Judges Grall and Accurso.


Plaintiff Brian Solomon appeals from the dismissal of his complaint for defamation and resulting emotional distress. The Law Division granted defendant Gannett Company, Inc.'s (Gannett) motion to dismiss the complaint for failure to file within the applicable one-year statute of limitations. We agree that plaintiff's complaint is time-barred and affirm.

On December 4, 2008, investigators from the Middlesex County Prosecutor's Office executed a search warrant at plaintiff's home and seized approximately five ounces of cocaine, a pound of marijuana, over 100 pills (including Percocet), two .357 caliber handguns, two assault rifles, and over 300 rounds of ammunition. The Prosecutor issued a press release the same day announcing that plaintiff had been charged with possession of CDS, possession of CDS with intent to distribute, possession of CDS with intent to distribute within 500 feet of a public park, and four counts of possession of weapons while engaged in CDS distribution.

Later that afternoon, defendant posted a news article about the incident on a website it operates under the headline, "Slew of gun, drug charges after authorities raid North Brunswick home." The article related all of the information contained in the press release but reported that authorities found two "loaded" .357 caliber handguns, and that the seizure resulted in "a slew of drug and gun charges."

On March 6, 2012, plaintiff filed a pro se complaint against Gannett alleging defamation based on the December 4, 2008 publication, which plaintiff accessed and printed out on March 9, 2011. Plaintiff contends that Gannett made "slanderous and untrue statements" in the article by stating that guns removed from his home were loaded and characterizing the seizure as resulting in a "slew" of gun and drug charges. He claims that the article was a contributing factor in the suspension of his visitation schedule with his children and damaged his reputation at work. Gannett filed a motion to dismiss in lieu of answer pursuant to R. 4:6-2(e) alleging the complaint was time-barred.

The Law Division Judge granted the motion after hearing argument. The judge found that there was no dispute that the article was originally posted on the site on December 4, 2008, and was still available there when plaintiff accessed it on March 9, 2011. Relying on Churchill v. State, 378 N.J.Super. 471 (App. Div. 2005), the court rejected plaintiff's argument that Gannett republished the article when plaintiff accessed it on March 9, 2011. The court determined that New Jersey's reliance on the single-publication rule for Internet publications meant that plaintiff's cause of action arose on the date the article was first published. Because plaintiff's complaint was filed well after December 4, 2009, the one-year limitations period for his defamation action, N.J.S.A. 2A:14-3, the court dismissed the complaint without reaching the merits. This appeal followed.

Plaintiff conceded at oral argument that the article was first published on December 4, 2008, and has since remained unchanged on the site. He contends, however, that by changing the ads on the site to reach a new or broader audience, Gannett republished the article. We disagree.

We adopted the single publication rule for internet publications in Churchill. The rule dictates that "a plaintiff alleging defamation has a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold." Churchill, supra, 378 N.J.Super. at 478. Thus, it does not matter how many copies of a single edition of a book or newspaper are distributed or how many times a webpage is viewed, all are treated as a single publication. The rule was designed to prevent the constant tolling of the statute of limitations, thereby preserving the legislative preference for a short statute and avoiding a multiplicity of suits by the same plaintiff arising out of a mass publication. Id. at 479.

In Churchill, we expressly rejected the argument that updates to a website which do not alter the substance or form of the offensive information constitute republication of the information thereby creating a new cause of action. Id. at 483-84. We agreed with the New York Court of Appeals which had rejected similar arguments, reasoning that to find republication in the case of constantly changing websites

would either discourage the placement of information on the Internet or slow the exchange of such information, reducing the Internet's unique advantages. In order not to retrigger the statute of limitations, a publisher would be forced either to avoid posting on a Web site or use a separate site for each new piece of information. These policy concerns militate against a holding that any modification to a Web site constitutes a republication of the defamatory communication itself.
[Id. at 481 (citing Firth v. State, 775 N.E.2d 463, 466-67 (2002) (internal citation omitted)).]

Plaintiff concedes that the article he finds offensive was first posted by Gannett on December 4, 2008. Changes in the "pop-up" ads that appear on the site have not altered its substance or form. Accordingly, we agree with the Law Division Judge that the statute of limitations on plaintiff's claim ran on December 4, 2009. Because plaintiff did not file his complaint until March 6, 2012, his claim is time-barred; we need not address the merits.


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