“A Highly Fact-Specific Inquiry”: The Application of the Discovery Rule in the Age of Social Media

by Kaela M. Athay

As the influence and ubiquity of social media grows, courts across the country are grappling with the legal implications of an ever-changing online landscape. One recent addition to the jurisprudence around social media is the Supreme Judicial Court’s (“SJC”) decision in Davalos v. Bay Watch, Inc., 494 Mass. 548 (2024), in which the court addressed an issue of first impression in the Commonwealth: when and how does the discovery rule apply to toll the statute of limitations for tort claims based on social media posts?

The SJC concluded that, to determine whether the discovery rule should apply in the context of social media, courts must engage in “a fact-intensive, totality of the circumstances analysis” to decide whether there is a genuine dispute of material fact regarding when a plaintiff knew or should have known about the tortious material. Id. at 555-56. If this inquiry reveals that such material was “widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.” Id. at 561.

Case Background

The plaintiffs, professional models who reside outside of Massachusetts, sued the defendant nightclub in the United States District Court for the District of Massachusetts, alleging various claims including defamation, violation of right to privacy, and violation of right to publicity.

The plaintiffs alleged that between 2013 and 2015, the defendant—without their knowledge or consent—posted the plaintiffs’ images on its Facebook account to promote the defendant’s Stoughton-based adult entertainment venue. The defendant accessed the plaintiffs’ photographs online, where they were “publicly viewable to some degree,” on account of the plaintiffs’ modeling work. Id. at 550.

The plaintiffs brought suit in 2021, well after the three-year statute of limitations had run. At summary judgment, the plaintiffs argued for the application of the discovery rule to toll the statute of limitations for their tort claims “until the plaintiffs knew or reasonably should have known that they had been harmed.” Id. at 549. In considering the plaintiffs’ request, the District Court observed that the application of the discovery rule to social media posts is a “novel circumstance that Massachusetts courts have not yet considered,” and certified to the SJC the 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?

Id. at 549.

The Discovery Rule

In Massachusetts, the default statute of limitations for tort claims is three years after a cause of action “accrues.” G.L. c. 260, § 2A. Typically, “a cause of action sounding in tort accrues on the date the plaintiff suffers an injury.” Davalos, 494 Mass. at 551. In a case like Davalos, where the harm was allegedly caused by the publication of defamatory material, “the general rule is that the cause of action accrues, and the statute of limitations begins to run, on publication of the defamatory statement.” Id. (citations omitted).

An exception may arise, however, when a plaintiff claims a delay in filing suit because she was not aware of her injury until after it was too late to sue. In such situations, the common law discovery rule extends the statute of limitations so that a plaintiff’s cause of action begins to accrue when she actually discovers or should have discovered “with reasonable diligence” the harm caused to her by another. Id. at 552. The application of the discovery rule is barred, however, when the evidentiary record shows that there was broad circulation or “widespread publication” of the allegedly defamatory content. Id. at 552-53.

But in an era of “viral” social media—where one person’s post can be seen by thousands (and sometimes millions) of people—how does a court determine whether an allegedly tortious social media post is “widespread” enough to prevent the application of the discovery rule?

The SJC’s Answer: Totality of the Circumstances

In answer to the District Court’s question, the SJC clarified that the discovery rule does apply to defamation and similar tort claims arising from social media posts, and determined that applying the discovery rule in those circumstances requires a fact-intensive, totality-of-the-circumstances analysis. Id. at 555-56. A defendant is therefore entitled to summary judgment unless the plaintiff can establish a “reasonable expectation of proving that she neither knew nor should have known of the defamatory publication.” Id. at 556.

Noting that the “mere fact” that tortious material was posted to social media is, on its own, “not sufficient to establish as a matter of law that a plaintiff should have known of it,” (id. at 557 n. 12), the SJC formulated a non-exhaustive list of the types of relevant evidence a fact-finder could consider when applying the discovery rule’s “knew or should have known” standard to social media posts. Such evidence includes:

• The date a plaintiff actually learns of the offending social media postings ( at 558-59);
• How widespread the post was on social media, including how many users the platform has and how many views or “likes” the defendant’s page or the post in question received ( at 559);
• The accessibility and searchability of the social media post (or the platform on which it appeared), including whether the post was private or public and what kinds of technology (g., facial recognition software) are or were available to facilitate or automate searching for social media postings (id. at 559-60); and
• Whether plaintiffs knew their images were being misappropriated by others, including whether plaintiffs themselves “widely distributed” their own images, and the size of plaintiffs’ own social media followings ( at 560).

The consideration of these (and potentially other) factors constitutes the “totality of the circumstances” analysis that should be used to determine what a plaintiff knew or should have known about defamatory social media postings, and therefore whether the discovery rule applies to defeat a statute of limitations challenge. Id. at 560-61. Having laid out these considerations, the SJC left it up to the District Court to evaluate the record before it.

Outcome at the District Court

The District Court applied the SJC’s guidance to allow the defendant’s summary judgment motion. Davalos et al. v. Baywatch Inc. d/b/a Club Alex’s Adult Entertainment, No. 1:21-cv-11075-NMG, Dkt. No. 107, at *1 (D. Mass. Sept. 30, 2024).

Plaintiffs claimed they either did not know about the offending material until their lawyer alerted them to the posts’ existence in 2021, or simply could not remember how they became aware of the posts. Id. at *8. Unconvinced, the Court found that there was “no doubt” that each plaintiff “had good reason to know that people were misappropriating their likenesses on social media,” including because they were all involved in similar lawsuits related to the misappropriation of their images. Id. at *10. This evidence, in the Court’s view, “render[ed] reliance on the discovery rule suspect,” as plaintiffs offered no reason why the posts at issue “were any different or less discoverable” than posts in their other lawsuits. Id. at *10.

The Court also noted that certain relevant facts—including how many people viewed the defendant’s Facebook page or the specific posts, or how many “likes” or “shares” the posts had gotten—were not in the record before it. Id. at *9. “Without such information, it is impossible to determine whether those posts were insufficiently circulated to warrant the application of the discovery rule.” Id. Also relevant to the Court’s determination was the lack of allegations that the posts were ever concealed or otherwise restricted. Id.

The Court concluded that the plaintiffs’ reason to know of the social media posts, combined with the lack of evidence regarding “how widely shared or viewed the images in question were,” or “precisely how difficult the images were to find when they were posted,” provided “insufficient grounds to warrant the application of the discovery rule.” Id. at *10-11.

Considerations for Future Tort Claims

Under the rule articulated by the SJC and applied by the District Court, the vastness of the social media universe does not erase a plaintiff’s burden “to create a genuine dispute of fact as to whether the applicable statute of limitations was sufficiently tolled.” Davalos, No. 1:21-cv-11075-NMG, Dkt. No. 107, at *11. Accordingly, having presented a factual record that was described by the SJC as “incomplete,” “underdeveloped,” and “limited” (Davalos, 494 Mass. at 550, 555, 559), the Davalos plaintiffs could not overcome summary judgment in the District Court (Davalos, No. 1:21-cv-11075-NMG, Dkt. No. 107, at *8-11).

To avoid a similar fate, would-be plaintiffs seeking to bring ostensibly time-barred tort claims based on social media posts should take care to collect and record the factual details underlying their claims. The more complete the factual record, the better equipped courts will be to apply the fact-specific inquiry outlined by the SJC.

Kaela M. Athay is a Litigation Associate in the Boston office of Manatt, Phelps & Phillips, LLP, and currently serves on the BBA’s Senior Associates Executive Steering Committee.