Re: 8/28/00 - Clock Starts Ticking for Web Libel Claims When Materials First Posted
Clock Starts Ticking for Web Libel Claims When Materials First Posted
Daniel Wise
New York Law Journal
August 28, 2000
Internet Web sites are entitled to the benefit of a rule designed to insure the effectiveness of the one-year statute of limitations for libel claims, a Southern District judge has ruled in a case stemming from CNN's ill-fated "Operation Tailwind" report.
A Web site that published a letter from a former Green Beret officer identifying a soldier as "a primary source" for the damning accusation in the CNN report that the military used nerve gas during an operation in a Laotian village should be afforded the benefit of the "single publication rule," Judge Michael B. Mukasey ruled in Van Buskirk v. The New York Times Co., 99-4265.
Under the single publication rule, New York's one-year statute of limitations starts to run from the date an article is first published.
The letter written by the former Green Beret officer, John L. Plaster, was first published on the Internet site of the Special Operations Association on June 8, 1998. Special Operations were a group of Green Berets responsible for carrying out covert missions during the Vietnam War. A similar letter was published in The New York Times.
The plaintiff, Robert Van Buskirk, whom Plaster accused of being the "primary " source for CNN's claim that the lethal nerve gas sarin was used in the raid on the Laotian village, did not file his suit in the Southern District until more than a year later, on June 14, 1999.
Plaster, who has written a book on covert operations during the Vietnam War, also accused Van Buskirk, a former soldier, of being the "sole" source for the broadcast's claim that the purpose of the mission was to kill American defectors present in the village.
After an investigation by First Amendment lawyer Floyd Abrams, of Cahill Gordon & Reindel, CNN withdrew the report and apologized for it. CNN also fired two of its producers who had worked on the story and reprimanded its Pulitzer Prize-winning correspondent Peter Arnett.
In applying the first publication rule to information posted on the Internet, Mukasey noted that it had been developed in response to "modern methods" of mass communication. Prior to New York's adoption of the rule, the statute began to run anew every time there was a subsequent "delivery" of the publication to an additional person.
Like other publishers using "modern methods," Mukasey concluded, Internet companies are entitled to the benefit of a rule adopted "for the purpose of protecting the statute of limitations' 'intended effect as a statute of repose.'"
Van Buskirk argued that the single publication rule should not be used because a statement on the Internet can be withdrawn at any time, but Mukasey rejected that view.
The argument was inapt, Mukasey concluded, because the New York Court of Appeals had applied the rule in situations where the offending statement could have been withdrawn. In Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119 (1948), the case in which the New York Court of Appeals adopted the single publication rule, a book sale had been made from the publisher's stock, and thus could have been "withdrawn" by G.P. Putnam, he pointed out.
The New York Times published a version of Plaster's letter as an opinion column on June 18, 1998, about a week after the Internet letter was posted. As a result, the Times, which became a defendant in the suit along with Plaster could not claim the benefit of the statute of limitations because Van Buskirk's lawsuit was filed on June 14, 1999, just inside the one-year deadline.
However, when the article is read in context, Mukasey concluded, it contained no defamatory statements.
Since he had participated in the mission, Van Buskirk had contended the article portrayed him as having committed war crimes.
Mukasey rejected that argument, noting that whole thrust of Mr. Plaster's article was that the story itself was false.
Van Buskirk was represented by Bruce J. Robbins and Elihu H. Berman, both from Clearwater, Fla. The New York Times was represented by George Freeman, of the newpaper's legal staff.
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