Davalos v. Bay Watch, Inc.

240 N.E.3d 753

Camila DAVALOS & others ¹

v.BAY WATCH, INC.²

SJC-13534

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 2024.

Decided September 4, 2024.

Social Media. Internet. Libel and Slander. Privacy. Limitations, Statute of. Practice, Civil, Statute of limitations.

Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

John V. Golaszewski, of New York (Paul Sullivan also present) for the plaintiffs.

Christopher A. Monson for the defendant.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.

KAFKER, J.

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. The motion judge, noting that "[t]he application of the discovery rule to posts on a social media platform … is a novel circumstance that Massachusetts courts have not yet considered," certified to us the following question:

"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?"

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,³ 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.

Background. The District Court did not ask us whether the discovery rule applied on the specific facts of the case at bar, and the record before us appears to be incomplete. We nevertheless recite certain facts from the record available to us to provide some context for the case and for our discussion.

The plaintiffs are established professional models who reside in States other than Massachusetts. Some claim to have thousands (or millions) of social media followers, and each has been a plaintiff in multiple lawsuits alleging misuse of their image similar to the case at bar.⁴

At some point prior to 2014, photographs were taken of the plaintiffs in their professional capacity. These photographs were, according to the plaintiffs, publicly viewable to some degree, whether because the plaintiffs themselves posted the images to their own social media accounts or because the images were licensed for use to third parties.

In 2021, the plaintiffs filed the instant lawsuit, alleging that the defendant’s adult entertainment nightclub, which had no affiliation with the plaintiffs, posted the pictures of them to its Facebook account without their consent. The five posts in question occurred between August 2013 and November 2015, and each depicts one or two of the plaintiffs "in scanty attire" (to borrow the words of the District Court). The plaintiffs’ names were not attached to the pictures in any way. Four of the posts include text separate from the pictures advertising events and specials at the nightclub -- including such details as "Two for $30 Dances | Two for $20 Back Massages" or "Free Admission if your [sic] … show your Twitter mention & Naked Women" -- while the fifth advertises a Veteran’s Day special via text that is incorporated directly into the photograph, with one of the plaintiffs pictured wearing a tight, camouflage-patterned outfit and sunglasses. The versions of the Facebook posts appended to the plaintiffs’ complaint reflect certain amounts of interaction with other users of Facebook, showing for each post between three and twenty "likes," between zero and two "shares," and on one post, a single comment.

None of the plaintiffs can recall exactly how or when she first discovered the existence of these posts by the defendant. A paralegal employed by the plaintiffs’ counsel, however, averred that, as part of her duties since her hiring in 2015, she conducts "painstaking" manual searches of the websites and social media pages of various businesses that are suspected of misusing her firm’s clients’ images.⁵ She further attested that there is no software that would allow her to efficiently search for the images in question and that Internet search engines do not search social media posts.⁶ As a result, the only available method is this "particularized research of particular establishments." It is this process, presumably, that led the plaintiffs to the defendant’s Facebook posts.

[1, 2] Discussion. General Laws c. 260, § 2A, establishes the default statute of limitations for tort claims, which must be "commenced only within three years next after the cause of action accrues." As a general matter, a cause of action sounding in tort accrues on the date the plaintiff suffers an injury. Passatempo v. McMenimen, 461 Mass. 279, 293-294, 960 N.E.2d 275 (2012), citing Koe v. Mercer, 450 Mass. 97, 101, 876 N.E.2d 831 (2007). In this case, the injury or harm is caused by the publication of the allegedly defamatory material, that is, the publication of the photographs suggesting that the plaintiffs worked at the adult entertainment club. In such cases, "the general rule is that the cause of action accrues, and the statute of limitations begins to run, on publication of the defamatory statement." Harrington v. Costello, 467 Mass. 720, 725, 7 N.E.3d 449 (2014), quoting Flynn v. Associated Press, 401 Mass. 776, 780, 519 N.E.2d 1304 (1988). See Wolsfelt v. Gloucester Times, 98 Mass. App. Ct. 321, 324, 155 N.E.3d 737 (2020) (same).

[3] However, we have also "recognized the unfairness of a rule that holds that the statute of limitations has run even before a plaintiff knew or reasonably should have known that she may have been harmed by the conduct of another." Bowen v. Eli Lilly & Co., 408 Mass. 204, 205, 557 N.E.2d 739 (1990). See Hendrickson v. Sears, 365 Mass. 83, 89-90, 310 N.E.2d 131 (1974) (collecting cases). To combat this unfairness, we have adopted a common-law "discovery rule for the purpose of determining when a cause of action accrues, and thus when the statute of limitations starts to run." Bowen, supra. Under this discovery rule, "a cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that (1) [she] has suffered harm; (2) [her] harm was caused by the conduct of another; and (3) the defendant is the person who caused that harm." Magliacane v. Gardner, 483 Mass. 842, 851, 138 N.E.3d 347 (2020), quoting Harrington, 467 Mass. at 727, 7 N.E.3d 449. [4, 5] We have held that the discovery rule applies to a wide variety of tort claims, including those for defamation.⁷ See Harrington, 467 Mass. at 727 n.10, 7 N.E.3d 449 (explaining that discovery rule applies "generally" to defamation claims). See, e.g., Fidler v. E.M. Parker Co., 394 Mass. 534, 544, 476 N.E.2d 595 (1985) (negligence and products liability); Franklin v. Albert, 381 Mass. 611, 618–619, 411 N.E.2d 458 (1980) (medical malpractice); Friedman v. Jablonski, 371 Mass, 482, 485, 358 N.E.2d 994 (1976) (fraudulent misrepresentation); Hendrickson, 365 Mass. at 83–84, 310 N.E.2d 131 (negligence in attorney certifying title to real estate). Thus, although the default rule is that a claim for defamation accrues (and the limitations clock begins to run) upon publication of the defamatory material, see Harrington, supra at 725, 7 N.E.3d 449, a plaintiff who sues more than three years after publication can defeat a limitations defense by demonstrating that she neither knew nor should have known of the publication. Our common law, however, further explains that "where an alleged defamatory publication is broadly circulated to the public, and did not involve concealment or confidential communications," the discovery rule will not be applied, and the cause of action will accrue upon publication, as such widespread publication should have been discovered by the plaintiff. Wolsfelt, 98 Mass. App. Ct. at 328, 155 N.E.3d 737, citing Harrington, supra at 727 n.10, 7 N.E.3d 449, and Flynn, 401 Mass. at 781-782 & n.7, 519 N.E.2d 1304. We have not, as the District Court recognized, had a case requiring us to consider the discovery rule in the context of social media.

1. "Inherently unknowable." Before we turn to the heart of the certified question, we pause to address the question’s use of the phrase "inherently unknowable." We have at times described the discovery rule as only available to plaintiffs whose claims were "inherently...