From 2013 to 2015 Bay Watch Inc., owner of an adult entertainment club, allegedly posted photos of “scantily clad” models on its Facebook page without the models’ consent.
The models filed a defamation lawsuit against Bay Watch Inc. in U.S. District Court in 2021–well past the three-year statute of limitations period set by M.G.L. c. 260, Sec. 2A.
The models claim that they no knowledge of the posts until years after publication.
Citing the lack of case law of the issue, the federal judge asked the Supreme Judicial Court (SJC) to weigh in on the matter.
The federal judge asked the 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?”
The SJC published its answer today:
We answer that question 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, 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.
The SJC did not render a decision on the case at issue. Instead its opinion was provided to the federal judge who posed the question. The full text of the opinion is attached below.