© 2014 The Texas Lawbook.
By Natalie Posgate – (August 22) – Houston’s 14th Court of Appeals on Thursday affirmed a summary judgment for a Bryan-College Station media outlet for a libel case brought against it in 2011 by a disbarred attorney who was convicted of forgery.
The plaintiff, Helen Mayfield, sued Gray Television Group, Inc. (d/b/a KBTX-TV) in April 2011 for alleged false statements made in its coverage of her October 2007 felony indictment and subsequent July 2008 conviction. A Houston district court granted summary judgment in favor of KBTX-TV in December 2011, concluding Mayfield’s claims were barred by Texas’ one-year statute of limitations for libel cases.
Lawyers involved with the case say Thursday’s opinion is potentially landmark because it is the first time for a Texas appeals court to apply the “single publication rule” to online media, which ultimately puts Web coverage in the same boat as other media outlets in regard to the rule’s purpose of barring libel claims on grounds of limitations.
In this instance, KBTX-TV, like most TV stations, published stories on its website that corresponded with its original broadcast reports.
“The Mayfield opinion is the latest example of a court having to apply analog case law to the digital era,” said Jackson Walker partner Paul Watler, who represented KBTX-TV and has had the TV station as a client for 15 years. “In my opinion, the decision by the 14th Court will be frequently cited in future cases as the leading Texas authority on this point.”
Mayfield, by phone, told of her intentions to appeal the decision.
“I am certainly going to appeal this because criminal activity should not be condoned to obtain a judgment,” she said. “Nobody has a right to knowingly publish false information about anybody. It will probably go to the U.S. Supreme Court.”
In Texas, the “single publication” rule says the one-year statute of limitations period for libel begins when a defamatory statement is first published and allots only one action for damages per each alleged defamatory publication. The purpose of the rule is to prohibit the assertion of stale claims.
Mayfield argued that the Internet should not be counted in this rule because a story posted online has a more damaging effect than one broadcasted on television or published in print.
“The Internet is [a] more pervasive and permanent medium than print,” Mayfield, who represented herself, wrote in one of her appellant briefs. “The sheer size of the audience on the Internet each day is up to a thousand times larger than any single publication of print media.”
In the reply brief, Watler and his former co-counsel, Ryan Pittman (who left Jackson Walker after filing the brief in January), argued that although no Texas court had yet ruled on whether the single publication rule should apply to online publications, the U.S. Court of Appeals for the Fifth Circuit has and the federal court’s ruling should hold authority in this situation.
In the 2008 ruling of Nationwide Bi-Weekly Administration, Inc. v. Belo Corp (also one of Watler’s cases), the Fifth Circuit concluded that the Supreme Court of Texas would apply the single publication rule to the online publication of a media entity’s news report.
The Fifth Circuit’s conclusion relied heavily on “Texas case law, public policy and the overwhelming weight of authority, including the fact that ‘every case to consider the issue [since 2002] has applied the single publication rule to publicly available Internet articles,’ “ Watler and Pittman wrote in their brief.
One of them was Mitan v. Davis, a federal decision in the Western District of Kentucky, that concluded “A statement electronically located on a server which is called up when a Web page is accessed, is no different from a statement on a paper page in a book lying on a shelf which is accessed by the reader when the book is opened.”
The 14th Court of Appeals agreed.
In a three-judge panel, which included Chief Justice Kem Frost and Justices John Donovan and Marc Brown, the justices determined that the Fifth Circuit correctly applied the single publication rule to online publications and agreed that the lower court had rightfully granted the summary judgment to KBTX-TV due to Mayfield filing her lawsuit more than one year after each broadcast and internet publication.
“Although we are not bound by the Fifth Circuit’s interpretation of Texas law… or its predictions about what rule the Supreme Court of Texas likely would apply, we agree with the Fifth Circuit’s reasoning and hold that the single publication rule applies to a television station’s news report publicly available on the Internet,” Justice Donovan wrote in a 14-page opinion.
“Mayfield also suggests, without supporting authority, that the discovery rule tolled the limitations period because she was unaware of the reports when they were first broadcast and published on the Internet,” Justice Donovan continued. “Assuming, without deciding, that she has sufficiently raised this unpleaded contention in response to appellees’ motion for summary judgment… our court has held the discovery rule does not apply when an allegedly defamatory statement is disseminated via the mass media. Accordingly, we reject application of the discovery rule to toll limitations on Mayfield’s libel claim.”
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