Civil practice – Discovery rule – Social media

Listen to this article

Where a U.S. District Court judge has certified a question asking whether material publicly posted to social media platforms is “inherently unknowable” for purposes of applying the discovery rule in the context of defamation, right of publicity, right to privacy, and related tort claims, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution and the accessibility and searchability of the posting.

“The plaintiffs in this case, a group of professional models, allege that the defendant improperly used their images in social media posts to promote its adult entertainment nightclub between August 2013 and November 2015. They filed suit in the United States District Court for the District of Massachusetts (District Court) alleging defamation and other related tort claims, but not until 2021 — well outside the three-year limitations period specified by G.L.c. 260, §2A. To avoid dismissal at summary judgment, the plaintiffs argued for application of the ‘discovery rule,’ which would prevent the running of the limitations period until the plaintiffs knew or reasonably should have known that they had been harmed by the alleged tortfeasor. …

“… Claims for defamation, violation of the right to privacy, violation of the right of publicity, and related claims that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, he or she has been harmed by the defendant’s publication of that material. Given how ‘vast’ the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant’s post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied. …

“Our answer to the certified question is as follows. Claims for defamation, violation of the right to privacy, violation of the right of publicity, and related claims that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, that he or she has been harmed by the defendant’s publication of that material. Given how vast the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant’s post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.”

Davalos, et al. v. Bay Watch, Inc. (Lawyers Weekly No. 10-096-24) (25 pages) (Kafker, J.) John V. Golaszewski, of New York (Paul Sullivan also present) for the plaintiffs; Christopher A. Monson for the defendant (Docket No. SJC-13534) (Sept. 4, 2024).

Click here to read the full text of the opinion.