Civil practice – Discovery rule – Social media

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Where plaintiffs have moved for reconsideration of a ruling regarding the applicability of the discovery rule to Facebook posts, that motion should be allowed and a question certified to the Massachusetts Supreme Judicial Court as to the application of the discovery rule to information posted on public social media pages.

“In allowing summary judgment as to the state law claims, the Court was under the incorrect impression that the 365 ‘similar’ cases that defendant identified involved the exact same photographs at issue in the instant case. That assumption was important to the Court’s decision not to address the issues of whether public social media posts are ‘inherently unknowable’ or whether claims based on such posts are subject to the discovery rule.

“Instead, the Court assumed that the posts were inherently unknowable and found that, in any event, plaintiffs did not meet their burden of demonstrating that their lack of knowledge as to the existence of the posts was objectively reasonable for the purposes of tolling.

“As plaintiffs have made the Court aware, the record does not, however, establish that when the summary judgment motions were filed, the similar cases filed by plaintiffs involved identical photographs to those in dispute here. That correction jeopardizes the Court’s conclusion that plaintiffs did not satisfy their burden of demonstrating that their lack of knowledge of the posts was objectively reasonable.

“The unaddressed issues now need to be resolved before this case goes forward and, in the meantime, this Court will vacate its prior entry of summary judgment in favor of defendants on the state law counts. …

“Here, the Court concludes it is necessary and appropriate to certify a question of law to the SJC. The correct application of the discovery rule will be dispositive of all of the state law claims in this case. If the discovery rule tolls the statute of limitations, the state claims survive; if not, those claims are time-barred. Furthermore, the discovery rule as interpreted by the SJC will substantially inform this Court as to whether laches bar the two federal law claims.

“Finally, there is no controlling precedent on the issue. In 2020, the Massachusetts Appeals Court held that an article published on a local newspaper’s website would not be tolled by the discovery rule. … This Court is aware of no other instance in which a Massachusetts appellate court has considered the interaction of the discovery rule with materials on the internet, let alone those published on social media platforms. …

“For the foregoing reasons:

“1. The motion for reconsideration is, with respect to the state law claims, allowed. The Court hereby vacates its Memorandum and Order (Docket No. 8).

“2. The following question will be certified to the Massachusetts Supreme Judicial Court (‘SJC’): ‘Under what circumstances, if any, is material publicly posted to social media platforms “inherently unknowable” for purposes of applying the discovery rule in the context of defamation, right of publicity, right to privacy and related tort claims?’”

Davalos et al. v. Baywatch Inc. (Lawyers Weekly No. 02-570-23) (4 pages) (Gorton, J.) (Civil Action No. 21-11075-NMG) (Dec. 15, 2023).

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