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Thursday, April 05, 2012

Allegations of defamation of the employee follow postings made on the employer's web site

Allegations of defamation of the employee follow postings made on the employer's web site 

Firth v State of New York, NYS Court of Appeals, 98 NY2d 365

From time to time, an employee will sue his or her public employer contending that he or she was defamed because of the employer's dissemination of information concerning his or her performance of official duties that the individual considers demeaning or embarrassing.

Among the most common "defamation" claims are those involving an individual alleging that internal communications between administrators or between an employee and an administrator or a third party concerning the worker contains libelous or defamatory statements.*

As a general rule, unless the individual is able to demonstrate "publication" and prove "malice," the courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."

The electronic age has provided an additional potential source of litigation based on allegations that the publication of certain information constitutes libel.

Many public jurisdictions maintain a "web-site" to disseminate information to the public. The Firth decision concerns a situation where placing a report critical of an individual resulted in the individual suing the public entity for defamation.

George Firth, formerly employed by the New York State Department of Environmental Conservation as its Director of the Division of Law Enforcement, sued the State, alleging that it defamed him when it placed a report issued by the Office of the State Inspector General critical of Firth's managerial style and the procedures he used in procuring weapons for the agency on State-maintained web-sites available to the public.

At a press conference, the Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized. On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

The court's conclusion: the single publication rule is applicable to allegedly defamatory statements that are posted on an Internet site and an unrelated modification of information displayed in another part of the same Web site does not constitute a republication for the purpose of determining the one-year statute of limitations for defamation actions set out in Section 215(13) of the Civil Practice Law and Rules.

In effect, the statute of limitations begins to run when the statement alleged to have disparaged the individual is first made available on the Internet.

Although "republication" will "retrigger" the running of the statute of limitations, the Court of Appeals ruled that "[t]he mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter" as a separate publication.

Consider another aspect of the electronic distribution of information electronically -- the use of E-mail as a vehicle for transmitting statements alleged to disparage an individual. This issue was not addressed by the court in the Firth decision.

Clearly the date on which the E-mail was initially transmitted would trigger the running of the statute of limitations in such cases. But what is the effect of the "forwarding" of E-mail?

Will the courts consider "forwarding" an E-mail by the recipient to another individual to be a "republication" for the purposes of determining the timeliness of an action? Still another element to consider -- may the "forwarder" be sued for the alleged libel?

If the courts deem each "forwarding" [and, perhaps, the "forwarder"] of an E-mail to be an independent and unique "republication" for the purposes of determining the running of the statute of limitations and liability, it may be that alleged disparagement by E-mail may never become stale insofar as bringing a viable law suit is concerned. Undoubtedly these issues will be presented to the courts for resolution because of the proliferation electronic communication and dissemination of information in the workplace.

* Murphy v Herfort140 A.D.2d 415, is an example of litigation resulting from communications between administrators while Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel. Allegations of defamation may arise following an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

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