The General Assembly has passed an amendment to the stature of limitations for defamation actions (Va. Code § 8.01-247.1) that may have an important impact on businesses who have been defamed by anonymous, on-line posters.  The statute now includes a provision that says, “If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered.”  

Prior to the amendment, the statute provided that, “Every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.” Under Virginia law, an action for defamation accrues at the time of publication.  Virginia also follows the single publication rule, which means that any cause of action for defamation will accrue at the time of the original publication, notwithstanding that the material might be republished or read for the first time at some point after the original publication.  The single publication rule grew out of a need to protect mass media publications (e.g., books, magazines, newspapers), which that may remain in tangible form for many years or may be republished at a later date. If the law allowed actions to be brought whenever somebody read the material for the first time or at the time of republication, publishers could be held liable decades after the original publication.  Although the rule grew out of print publications, courts have been consistently applying the rule with respect to material published on the Internet as well.

Recently, however, businesses have struggled to assert these types of claims based on Internet speech, given the growing use of pseudonyms, false names, and other usernames that allow a speaker to publish material anonymously.  This has become a growing problem for businesses who discover negative reviews and, in some circumstances, fabricated reviews about their businesses on sites such as Yelp.  Applying the existing rules for single publication and accrual, those businesses would have one year from the date of the original publication to file suit.  The problem, however, is that businesses often do not know who the speakers are and have no means to identify them without getting additional information from the host of the relevant website.

The amendment to Section 8.01-247.1 is an important step for businesses facing this situation.  As written, it extends the statute of limitations “until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered.”  It will be interesting to see how this language is interpreted and how much leeway is given to businesses.  Particularly, the level of effort that needs to be exercised in order to trigger the statute will be an interesting subject.

This is not the first attempt by the General Assembly to address anonymous speech.  The General Assembly passed Section 8.01-407.1 to provide a means of issuing a subpoena to learn the identity of anonymous speakers.  The statute sets forth a detailed procedure and the specific elements that a plaintiff must prove to have the subpoena issued.  Although many considered this statute to be a crucial procedure for identifying anonymous speakers, the Supreme Court of Virginia recently struck a blow in those efforts.  In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., ___ Va. ___, 770 S.E.2d 440 (2015), the court held that Section 8.01-407.1 does not permit a Virginia business to issue a subpoena to a non-state website host seeking information or documents located outside of Virginia. The decision overturned rulings by the circuit court and the Court of Appeals, both of which had determined that the statute permitted this type of subpoena.  In light of the new decision, businesses must find another method of gathering the information.  The most likely method will be to file a miscellaneous action in the foreign state asking for issuance of a subpoena.  This process undoubtedly will be more expensive and less likely to succeed.  Whether the General Assembly will further attempt to address this issue based on the recent opinion is unknown.

What is clear, though, is that the amendment to the statute of limitations has become even more important given this decision.  Because the process of identifying anonymous speakers will now be more complicated and will take more time, having the statute of limitations tolled while the plaintiff is seeking to identify the speaker will save many causes of action that otherwise would have been barred under the old rule.


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