Statute of Limitations in Facebook Defamation Claim Based on “Active Use”
Author: Sara Mills, Esq.
A recent published Court of Appeals decision has added some guidance for litigating defamation claims arising from use of social media. In Laughland v. Beckett, 2015 WI App 70, 14AP002393, the court examined a claim for defamation related to a fake Facebook account and posts made by the fake account that spanned several months. “Active use” of the social media account, which included “actively publish[ing] material” on the fake account, constituted a “continuing course of conduct” for purposes of the statute of limitations. See ¶18. As such, the “single publication rule” established in Ladd v. Uecker, 2010 WI App 28 was not outcome determinative. The court applied the statute of limitations based on the date of the last Facebook post and held that the claim was timely filed. The facts are as follows:
On January 10, 2010, John Beckett created a Facebook page using the name Stephen Laughland II. Beckett used the email address consumer.advocate.WI@gmail.com for the Facebook account. At the time, Laughlin was an adjunct lecturer at multiple Milwaukee-area schools, including Marquette University, and happened to be engaged in a custody dispute with the mother of his child. Beckett was the woman’s boyfriend, but he had never actually met Laughland. After creating the Facebook page, Beckett used the gmail address to send emails to Laughland berating him and making threatening statements such as, “your day has come” and “someday soon you will pay the price…” However, Laughland remained unaware of the Facebook page at this point.
On the fake Facebook profile, Beckett’s inaugural post stated that he considered the Facebook account to be “a public service for anyone that [sic] is not aware of Mr. Laughland’s total disregard for the financial freedoms we as consumers cherish.” ¶4. He also referred to Laughland as a “preying swindler,” implied that Laughland was engaged in some kind of banking manipulation, and “took advantage” of credit card companies. Id. He sent friend requests to many of Laughland’s friends.
On April 10, 2010, Laughland received an email from an acquaintance saying: “I received a [Facebook] friend request from you however, it must be someone using your name. It says horrible things about you etc. Just a FYI, you may want to report it.” ¶3. It was at this time that Laughland discovered the page Beckett created. On April 21, 2010, another acquaintance of Laughland, found the site and sent Beckett a Facebook message inquiring about the poster’s identity. Beckett responded that he maintained the page “in hopes that others may benefit from trusting avoiding corrupt individuals.” ¶7.
It was not until these April, 2010 exchanges that Beckett stopped posting on the fake Facebook account. In July 2012, Laughland sued Beckett for defamation. At the time the page was created in 2010, the statute of limitations for defamations claims was two years.See Wis. Stat. § 893.57 (2008-2009). However, that statute was amended to three years in February 2010. The trial court held that because Beckett’s last post was made in April, 2010, the three year statute of limitations applied and the suit was not barred.
The court specifically differentiated the case from another decision about online postings, Ladd v. Uecker, 2010 WI App 28, 323 Wis. 2d 798, 780 N.W.2d 216. The Laddcase involved a single online post that remained available online two years after it was posted. In Ladd, the plaintiff argued that she was defamed each time a new visitor viewed the post. The court disagreed and held that “Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each ‘hit’ or viewing of the information should be considered a new publication that retriggers the statute of limitations.” Ladd at ¶12.
Reading the Laughland and Ladd decisions together raises an important question: does the single publication rule apply when the defamer has control over the dissemination of the material? While it was not an issue discussed in the court’s opinion, Beckett had control over the information. Certainly if Beckett created the fake account, he could disable it. But in failing to do so, he essentially permitted continuous access to his defamatory statements. He controlled the dissemination of the information, even if passively, which Ladd suggests is enough to avoid application of the single publication rule. But Beckett did not actively disseminate the information after a certain point in time, and Laughland suggests that active participation is necessary in the context of applying the statute of limitations.
In its discussion of Ladd, the Laughland Court explained that the single publication rule “prevents the constant tolling of the statute of limitations.” Laughland at ¶ 17, fn. 3. While courts may be reluctant to allow constant tolling—and for good reason—the ever-changing controls exercised over information even after its publication suggest that some other test or analytical framework is required.