Friday, February 08, 2008

Raleigh N&O, Duke Lacrosse & Defamation (Post 2)

Readers Note: This post should be read as a continuation of Raleigh N&O, Duke Lacrosse & Defamation (Post 1) with the cautions and qualifications noted in that post applying as well to this post.

Now to matters concerning how North Carolina statute of limitations and court interpretations of same bear on possible libel (print) and slander (spoken, as when N&O reporters gave interviews) involved in the Raleigh News & Observer's coverage of the Duke lacrosse case.

According to attorneys I’ve discussed those matters with, the short answer is NC statute of limitations and court rulings weigh heavily against the lacrosse players and others connected to the case being able to now bring defamation claims against the N&O.

The principal reason is NC’s one year statute of limitations for defamation claims. The N&O coverage most likely to be at issue in defamation claims occurred in 2006.

With that said, there are “workarounds” to the statute of limitations. For example, the one year statute is typically seen to be “accruing” (in lay times “when the clock starts ticking" – JinC ) in the case of a newspaper article from the first day of publication.

However, consider from the Web site Dancing With Lawyers this extract titled “Delaying the Date of Accrual”:

If the date of "discovery" (not to be confused with the legal process of discovery, which means squeezing information out of the other team) comes after the act then you may be able to get the statute of limitations extended.

In this sense "discovery" means when you discovered that defamation had happened, or when it started doing you harm. There is likely to be a good bit of "shoulda-woulda-coulda" when two lawyers get to arguing.

With a defective product that usually means the day the defect showed up. But with defamation it may not be as clear – their lawyer shows the slander was quoted in The New York Times; your lawyer shows that you were on a two-year expedition in the Amazon rain forest. Their lawyer shows that you were in New York City for a week during those two years; your lawyer shows that you didn't meet anyone who had read the newspaper story. And so on....
I questioned whether the date of accrual could be delayed based on plaintiff(s) discovering at a later date that a news story was not “straight reporting” but a case where the paper willfully reported material it knew was false or failed to check and the plaintiff(s) only learned of the newspaper’s willfulness and/or failure to check later.

Here’s a paraphrase of what one attorney said: Yes, possibly, but it would be a very long-shot and so hard to do. You’ll encounter all sorts of objections to forcing reporters to testify. And people lie, you know. The courts usually come down on the side of the papers and give them a lot of “freedom of the press” leeway.

The other attorneys pretty much said the same thing along with the “you can never be sure what will happen” qualification. The uniqueness of the case in terms of the public attention its received and the financial resources and legal firepower plaintiffs could bring to bear were also mentioned as factors which could lead to a successful “workaround” in terms of statute of limitations precluding claims against the N&O.

One last matter I’ll mention is an emerging area of law having to do with Internet posting of material.

The attorneys I talked to all mentioned it and stressed it was a very complicated and unsettled area of law involving mostly cases in which plaintiffs have argued that accrual begins anew each time an Internet document such as a newspaper story is accessed by someone on the Web.

None of the attorneys was willing to speculate on how this and other emerging areas of what’s sometimes called cyber law or tech law could impact statute of limitations regarding the Duke lacrosse case; and I won’t either.

Those of you interested in the area can search the Web. There’s a good deal out there.

I found this Tech Law Journal summary and discussion dated Dec. 21, 2007 of a recent U. S. Court of Appeals ruling very interesting, especially the last five paragraphs which noted issues the courts have not yet addressed concerning public access to newspapers’ archives issues and statute of limitation accrual.

I’ll post again in a few days concerning matters related to any legal liability the N&O may bear for its biased, racially inflammatory and sometime false coverage of what we now know was a frame-up attempt and a cover-up of it, both beginning in March 2006.

The frame-up attempt ended on April 11, 2007 when the NC Attorney General declared the three former Duke students and lacrosse players "innocent." The cover-up continues to this day.


Anonymous said...

The coverup will eventually get you in trouble every time.