Limitations Period / Single Publication Rule / Discovery Rule

There are three related litigation rules or doctrines that sometimes combine in Illinois defamation litigation to create formidable barriers for a plaintiff: (1) the Statute of Limitations; (2) the Single Publication Rule; and (3) the Discovery Rule. Statement of these rules helps to explain how they can work for or against plaintiffs or defendants in defamation litigation.

The statute of limitations for defamation is one year. The question when a defendant analyzes a defamation complaint with be whether all (or the only) defamatory statements were published more than a year before the plaintiff filed its complaint. From an evidentiary standpoint, when dealing with online publications, it is wise for defense counsel to look at all the copies printed from the Web, to see if there may be a date stamp indicating when the plaintiff actually printed the web page containing the alleged defamatory statement. The inquiry regarding date of printing is for defense counsel to determine, if possible, whether the plaintiff printed the web page in question more than a year preceding the filing of the lawsuit.

The Single Publication Rule derives from the Single Publication Act (740 ILCS 165/1), which states in relevant part:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.

In their response to a defendant’s motion to dismiss a defamation complaint, it is not uncommon to see a plaintiff admit that all the allegedly defamatory statements identified in the Complaint - upon which their claims are exclusively founded - were published more than a year before the suit was filed. It is also not uncommon to see a defamation plaintiff concede that they were aware of all of the alleges defamatory statements more than a year before they filed suit.

Rather, defamation plaintiffs (who in the 21st Century often complain about online publications) may mistakenly contend that the harm alleged in their complaint is “continuing in nature” or that it includes unidentified “new content and updates published in the last three months. . .”

The assertion that harm from undeniably time-barred statements is “continuing| does not salvage a plaintiff’s otherwise time-barred defamation claim in as Illinois. This is where Illinois’ adoption of the single-publication rule, 740 ILCS 165/1, draws the line between timely and time-barred defamation claims. Under the single-publication rule, defamation claims are complete at the time of the first publication, and an allegedly continuing publication neither creates a fresh cause of action nor tolls the applicable statute of limitations. Thus, any defamation claims that accrued when an online publication was published are not extended because an online publication may remain online. In other words, a continuing defamatory publication does not toll or otherwise extend the Illinois one-year statute of limitations for defamation.

The Illinois Discovery Rule does not permit a suit for unknown or undiscovered claims. The Discovery Rule can toll the statute of limitations, but only in certain circumstances to permit the filing of claims discovered after the applicable statute of limitations has run. Defamation plaintiffs will sometime try to subvert the Discovery Rule with speculation that a Defendant may have (already) published unknown defamatory statements in the past year or will publish defamatory statements in the future. This kind of speculation does not save claims that are barred by the one-year statute of limitations or the Single Publication Rule.

Illinois is a fact-pleading jurisdiction. Defamation defense counsel should scrutinize a defamation complaint to determine if the only facts pleaded by the plaintiff are that the defendant made allegedly defamatory statements during the time period that would be time-barred by the one-year limitations period. Defamation plaintiffs cannot state a claim based on speculation regarding unknown defamatory publications that “might” exist, because such speculative claims do not meet Illinois fact-pleading standards. Allegations that a plaintiff may publish defamatory statements in the future do not satisfy fact pleading standards, because Illinois courts can hear only ripe disputes where there is actually a justiciable controversy. What might happen in the future is not a “fact.” Speculative pleadings by a defamation plaintiff such as these reflect a fundamental misunderstanding of the nature and effect of “the Discovery Rule.

In sum, Illinois counsel for plaintiffs or defendants with defamation claims should scrutinize their client’s facts and the evidence - especially when dealing with online publications - to determine if their defamation claims are (1) timely; (2) comply with the Single Publication Rule, and (3) do not reflect or violate the Discovery Rule.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander libel and cyber smear lawsuits. We are knowledgeable regarding the changes and complexities of this evolving area of the law. We are committed to fighting for our clients' rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated non-compete and trade secret and covenant not to compete cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.