Ninth Circuit Clarifies Application of Single-Publication Rule to Websites

Charles Yeager filed suit in 2008 alleging, in part, that statements made on the website of Aviation Autographs--which sells aviation-related memorabilia including items related to or signed by Yeager, violated his common law right to privacy and California's statutory right to publicity.

As described by the Ninth Circuit, at his deposition in the action, "Yeager did not recall answers to approximately two hundred questions, including questions on topics central to this action."  But about three months later, in connection with his opposition to the defendants' motion for summary judgment, Yeager filed a declaration that allegedly contained "many facts that Yeager could not remember at his deposition."

The district court held that Yeager's declaration was a "sham," disregarded it with respect to facts that he could not remember at his deposition, and granted summary judgment to defendants on all of Yeager's claims.

The Ninth Circuit's published opinion addressed two issues:  the district court's conclusion that Yeager's declaration was a sham; and the district court's application of the single-publication rule to conclude that Yeager's common law right to privacy and statutory right to publicity claims were time barred.

As to the sham affidavit rule, the Ninth Circuit concluded, apparently for the first time, that an abuse of discretion standard applies to review of a district court's application of the rule.

The Ninth Circuit also rejected Yeager's contention that his declaration could not be a "sham" because it did not declare facts that contradicted facts testified to at his deposition.  Although "newly-remembered facts, or new facts, accompanied by a reasonable explanation, should not ordinarily lead to the striking of a declaration as a sham," here, the Ninth Circuit found it "implausible that Yeager could refresh his recollection so thoroughly by reviewing several documents in light of the extreme number of questions to which Yeager answered he could not recall" in his deposition and the number of exhibits used in the deposition to try to refresh his memory.

The Ninth Circuit then addressed the single-publication rule, which limits tort claims based on mass communications to a single cause of action that accrues upon the first publication of the communication.  Under that rule, the statute of limitations is reset when a statement is republished.

Here, there was no evidence that the defendants added any information about Yeager or changed the challenged statements about him on the website after October 2003, and thus, the district court applied the single-publication rule to conclude that Yeager's right to privacy and right to publicity claims, which were filed in 2008 and subject to a two-year statute of limitations, were time barred.

The Ninth Circuit affirmed, rejecting Yeager's argument that the website was republished for purposes of the single-publication rule, and the statute of limitations restarted, each time defendants made additions to or revised the content of the website, even if the additions or revisions did not pertain to Yeager.

Instead, the Ninth Circuit held that, at least under California law, "a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience."  The court concluded that this holding was consistent with other cases and, from a policy perspective, "prevents freezing websites in anticipation of litigation."

The Ninth Circuit also issued an unpublished decision that rejected Yeager's other challenges to the grant of summary judgment to the defendants and the award of attorneys' fees to them.

The case cite is Yeager v. Bowlin, Case Nos. 10-15297, 10-16503 (9th Cir. Sept. 10, 2012).

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