Defamation claim dismissed as time-barred

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The Wisconsin Court of Appeals has affirmed a trial court’s dismissal of a defamation action against the Milwaukee Brewers and its longtime radio commentator, Bob Uecker, reasoning that the statute of limitations barred the claims, even though the defendants allegedly posted defamatory material to a Web site that can still be accessed.

In doing so, the court adopted the “single publication rule,” reasoning that defendants’ “republishing” information is not actionable.

In June 2006, Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ann Ladd pursuant to Wis. Stat. § 813.125 (2007-08), alleging a six- or seven-year pattern of harassment. Around the same time, Ladd – a self-described “devoted fan” – was charged with felony stalking. After a two-day hearing, a court commissioner issued an injunction, but the prosecutor dismissed the criminal charge.

Then on Sept. 8, 2008, Ladd filed a “sprawling pro se complaint” alleging defamation in the affidavit supporting the injunction petition. Among other claims, she asserted that the allegedly defamatory affidavit had been published to a Web site called thesmokinggun.com.

Waukesha County Circuit Court Judge Michael O. Bohren dismissed her claims, reasoning that the action was time-barred because it had not been commenced within two years after the cause of action accrued under Wis. Stat. § 893.57.

He further held that the remaining allegations failed to state a claim because they involved statements protected by various privileges.

Ladd appealed, arguing that although Uecker and/or the Brewers allegedly posted his affidavit to thesmokinggun.com on June 2, 2006, the purportedly defamatory statements still can be accessed on the Internet today. She contended that the information therefore is republished each time someone visits that Web site or others to which the material has found its way, thus making her cause of action timely.

But Judge Harry G. Snyder of the Dist. II Court of Appeals authored a decision for a three-judge panel affirming the dismissal.

Snyder wrote that Wisconsin had not yet addressed the issue head-on, but that the great majority of courts follow the single-publication rule.

“We hold that ‘republishing’ the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations. Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each ‘hit’ or viewing of the information should be considered a new publication that retriggers the statute of limitations.”

Elizabeth T. Russell, chair of the Sports & Entertainment Law Section Board of the State Bar of Wisconsin, noted that in most cases, “the celebrity is usually the party claiming to have been defamed. So in that sense, this is not a decision that artists and athletes are going to be cheering about.”

However, she added, “I think the single-publication rule in Wisconsin was probably long overdue.”

Marquette University Law School Professor Matthew Mitten, who teaches Sports Law and Torts, agrees.

“It was a sensible ruling, in today’s Internet society. If you were to treat every time someone went to a Web site and read some thing there as a separate publication, the statute of limitations would essentially go on forever.”

Ladd was unrepresented before the Court of Appeals. She did not answer a call to her home in Prospect Heights, IL.

Whether she’ll seek review by the Wisconsin Supreme Court is anyone’s guess, said Russell, of the Law Office of Elizabeth T. Russell in Madison.

In the mean time, since the case was recommended for publication, the single-publication rule is citable, she noted.

Uecker and the Brewers were represented by Katie Longley of the Milwaukee headquarters of Foley & Lardner LLP.

The case is Ladd v. Uecker, Wisconsin Court of Appeals No. 2009AP596.