Aviation lawyer and seasoned pilot Arthur Alan Wolk knows quite a bit about the stratosphere and the troposphere, but he may have learned something new this week about the blogosphere when a federal judge tossed out his libel suit against the bloggers at Overlawyered.com.
The National Law Journal
August 6, 2010
By Shannon P. Duffy
As U.S. District Judge Mary A. McLaughlin sees it, a blog is legally the same as any other “mass media,” meaning that any libel lawsuit filed against a blog in Pennsylvania must make its way to court within one year.
Wolk was hoping for a break on the strict time limit. His lawyers — Paul R. Rosen and Andrew J. DeFalco of Spector Gadon & Rosen — argued that the “discovery rule” should apply to toll the statute of limitations until the target of an allegedly libelous blog entry discovers it.
But McLaughlin found that blogs, by virtue of publishing on the Internet, qualify as mass media that simply cannot be subjected to the discovery rule.
“The court is not aware of any case in which the discovery rule has been applied to postpone the accrual of a cause of action based upon the publication of a defamatory statement contained in a book or newspaper or other mass medium,” McLaughlin wrote in her nine-page opinion in Wolk v. Olson.
McLaughlin said she followed the lead of several of her colleagues on the Eastern District of Pennsylvania bench, as well as numerous courts around the country, in holding that “as a matter of law, the discovery rule does not apply to toll the statute of limitations for mass-media defamation.”
In court papers, Wolk said he first learned of the existence of the allegedly defamatory article on Overlawyered when he was advised at a seminar on client relations in early 2009 to perform a Google search of his own name.
It was only then, Wolk claims, that he found the April 2007 blog entry by Overlawyered’s Theodore Frank that allegedly included false allegations about Wolk’s handling of a case in Georgia.
“The discovery rule in Pennsylvania is a rule of statutory construction applicable to all cases,” Rosen and DeFalco argued.
But Overlawyered’s lawyers — Michael N. Onufrak and Siobhan K. Cole of White & Williams — argued that the discovery rule simply cannot apply to any defamation suit that stems from a “published” statement.
McLaughlin agreed and found that Rosen and DeFalco were asking the court to stretch the discovery rule beyond its intended scope.
“Not all cases are worthy of the discovery rule. Worthy cases are those pertaining to hard-to-discern injuries,” McLaughlin wrote.
“If the rule is intended for hard-to-discern injuries, it would be at odds with a cause of action based upon a defamatory statement disseminated through a mass medium, like a website, and received by tens of thousands of readers,” McLaughlin wrote.
Applying the discovery rule in Wolk’s case would also “undermine the purpose” of the statute of limitations, McLaughlin found.
“If a plaintiff may bring a person into court after a limitations period has expired simply by invoking the discovery rule, and if a court is bound from dismissing the claim no matter how public or ancient the injury may be, then the discovery rule will have nullified the stability and security that the statute of limitations aims to protect,” McLaughlin wrote.
McLaughlin cited a string of decisions that followed the same logic, including Schweihs v. Burdick, a 1996 decision in which the 7th U.S. Circuit Court of Appeals adopted a “mass-media exception” to the discovery rule, explaining that the rule only applies to defamation “in situations where the defamatory material is published in a manner likely to be concealed from the plaintiff, such as credit reports or confidential memoranda.”
Wolk has already filed a notice of appeal to challenge McLaughlin’s ruling.
Rosen said he believed that McLaughlin had erred by failing to apply recent Pennsylvania Supreme Court decisions that say the discovery rule tolls the statute of limitations until an “awakening event.”
The Internet, Rosen said, poses “unique challenges” for the courts in the field of defamation.
“Unlike mass media print defamation claims, where the publication is pervasive for a short time, but soon becomes yesterday’s news, the Internet is a different animal,” Rosen said.
“In cases such as Mr. Wolk’s, involving a blog that is relatively obscure, but which published a false statement that may appear on any Google type search, the discovery rule is of particular importance,” Rosen said.
Onufrak said that if his clients had not won the case on statute-of-limitations grounds, he was confident that they would have won on First Amendment grounds because the blog entry was not defamatory and would have been considered protected opinion.