7.12 Statute of Limitations

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.12 STATUTE OF LIMITATIONS ⁴³⁶⁵

7.1201 In General.

After years of judicial debate, the Virginia General Assembly settled on a one-year statute of limitations for defamation actions.

Every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues. If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered. ⁴³⁶⁶

The statute of limitations for slander of title is two years, which begins to run when the deed of trust was recorded. ⁴³⁶⁷

7.1202 Publication.

A claim for defamation generally accrues when the defendant publishes the defamatory communication to any third party. ⁴³⁶⁸ Thus, the statute of limitations begins to run whenever any third party receives the defamatory communication, even a lower level employee opening the mail. ⁴³⁶⁹

Significantly, a publication to any third party starts the statute of limitations running even if the plaintiff does not learn of it until later. ⁴³⁷⁰ However, a statutory exception to this rule is contained in section 8.01-247.1 when the publication is done anonymously or under a false identity on the Internet, tolling the limitations period so that the plaintiff has time to discover the poster's identity. ⁴³⁷¹ The Fourth Circuit has reiterated that outside this exception, Virginia "has declined to adopt a discovery rule in defamation actions." ⁴³⁷² Thus, the statute of limitations can bar plaintiffs from filing an action even before they become aware of the defamation. Other jurisdictions recognize the discovery rule in defamation cases. ⁴³⁷³

7.1203 "Single Publication" Rule.

A. In General.

Many courts have addressed the statute of limitations when a defendant circulates an allegedly defamatory statement to a large number of people. This situation often arises in connection with books and magazines that continue to be sold and resold, thereby making it potentially difficult to determine when the statute of limitations begins to run for a particular copy of the alleged defamation.

B. Media Cases.

Courts trying to avoid this difficult analysis adopted what is called the "single publication rule," under which the statute of limitations for a widely circulated communication, such as an article in a newspaper or magazine, accrues when it is "generally available to the public" so that "any incidental or isolated deliveries occurring after the initial general distribution are not deemed distinct republication causes of action." ⁴³⁷⁴ A Virginia circuit court has adopted this principle in a media defamation case. ⁴³⁷⁵

In a University of Virginia official's successful defamation action against Rolling Stone, LLC based on the magazine's false rape story, a federal court acknowledged that it was "less clear" how the single publication rule applied (for liability rather than statute of limitation purposes) in the context of electronic media. ⁴³⁷⁶ The jury in that case found that Rolling Stone faced liability for republishing the discredited rape story in a post-publication statement acknowledging "discrepancies" in the alleged victim's account.

C. Nonmedia Cases.

The single publication rule makes sense in a media defamation case but does not fit well into the analysis of a nonmedia case. First, in most nonmedia cases, it is possible to identify each publication and republication by the defendant or third parties, thus rendering unnecessary the practical "single publication" rule. Second, applying the "single publication" rule in a nonmedia case might allow the defendant or third parties to escape liability. Plaintiffs already face the burden of a well-established rule that triggers the statute of limitations from the first publication even if the plaintiffs do not learn of the defamation until later. Adding the burden of a "single publication" approach seems to tip the scales too far against plaintiffs.

Some courts have declined to apply the rule in nonmedia cases. In one case, an Eastern District of Virginia court rejected the applicability of the "single publication" rule in a nonmedia case involving the defendant's transmission of two separate letters to two separate recipients. As the court explained,

The single publication rule "permits only one cause of action to be maintained for any single publication, even if heard or read by two or more third persons." Because there are two letters at issue here, written by two different people, the single publication rule does not apply. ⁴³⁷⁷

On the other hand, some courts have applied the "single publication" rule in nonmedia cases. For instance, the Fourth Circuit has held that courts should treat the circulation of multiple copies of an allegedly defamatory letter "as a single publication for which only one action for damages can be maintained." ⁴³⁷⁸ As long as these multiple communications are "substantially contemporaneous with the original communication," they would not give rise to separate statute of limitations periods. ⁴³⁷⁹ An Eastern District of Virginia court has also applied the doctrine outside the context of magazine or book publications. ⁴³⁸⁰ A Virginia circuit court has held similarly. ⁴³⁸¹

7.1204 Accrual Based on Extrinsic Events.

Some plaintiffs have argued that their defamation claim did not accrue until the occurrence of an extrinsic event that completes the cause of action. These efforts generally fail because Virginia law recognizes that the cause of action arises at the time the defendant publishes the defamatory statement even if no harm arises until later.

Thus, courts have rejected plaintiffs' efforts to claim that the one-year statute of limitations began to run only when they suffered a tangible loss, such as a lost job opportunity, caused by the defamation ⁴³⁸² or were exonerated of a criminal charge, which the plaintiffs pointed to as affirming the falsity of defendant's allegation of criminal conduct. ⁴³⁸³ Only one circuit court seems to have taken a different approach. ⁴³⁸⁴

7.1205 Republication.

Interestingly, a defamer might be liable for someone else's repetition of a defamatory statement long after the statute has run on the original statement. Defamers are potentially liable for any "republications" of defamatory statements that they authorize or that are the "natural and probable consequence" of the original defamation. ⁴³⁸⁵

The statute of limitations against the original communicator does not start running again if the republication by a third party does not meet that standard. ⁴³⁸⁶ Thus determining whether a republication saves a tardy plaintiff from a statute of limitations defense depends on whether the republication states a separate cause of action. ⁴³⁸⁷ Significantly, each cause of action must be brought within one year. As one court explained, the "plaintiff may not simply extend the statute of limitations on his claim for the first set of statements contained in the letter, or revive such action, by identifying similar oral statements made later." ⁴³⁸⁸

In a case demonstrating Virginia's expansive view of the absolute privilege afforded allegedly defamatory statements made in the litigation context, ⁴³⁸⁹ the Virginia Supreme Court has held that a deposition witness's testimony that repeats a defamatory statement on which the statute of limitations has run did not create a separate cause of action. ⁴³⁹⁰

7.1206 Actions Based on Third Party's Communication.

Some courts recognize a very narrow exception to the general rule that only the communicator faces liability for a defamatory communication. The narrow exception involves premises owners who fail to remove third-party defamatory communication from...