A recent decision by the Nebraska Supreme Court provides both an interesting lesson in the law and some food for rumination on the policies and ethics that schools need to apply to their web sites.
The legal dilemma facing the justices in Shlien v. Board of Regents involved the proper application of the statute of limitations. Each state has one of these laws that limits the period of time the state can bring criminal charges or that a plaintiff has to bring a lawsuit. In each case, the clock begins to run after some defined event.
For most lawsuits, the time frame is usually easy to determine because the action or inaction that forms the basis for the litigation is the triggering event. For example, if there is a three-year limitation on filing negligence lawsuits, the day you smash your car into my car is the beginning of that period. If I sue you for the damages four years later, the court will dismiss the case because the time allowed for commencing the suit under the statute of limitations has expired.
But what about cases where there is nothing as obvious as a merger of metal to define the beginning of the time to file a lawsuit? Sometimes, when injuries are hidden, it would be unfair to allow the wrongdoer to “get away with it” simply because no one knows about the injury until the limit has already expired.
To address this injustice, the courts have created the “discovery rule.” Quite simply, this rule says that in a case where the injury is not obvious and is neither discovered nor discoverable within the time period running from the wrongful act or omission, the statute of limitations does not begin to run until the potential plaintiff discovers, or with reasonable diligence should have discovered, the injury.
In Rania Shlien’s lawsuit against the University of Nebraska and former assistant professor David Hibler, the court had to decide whether an event that took place in 1995 was subject to a two-year limit on filing suits under the Nebraska tort claims act.
It seems that in the early 1990s, when Shlien was a student at the university, she submitted two papers in Hibler’s class that included “intimate details of her private life,” according to her suit. Several years later, in 1995, Hibler set up a web site using the university’s computer service. Among other items displayed on the site for the web world to view were the papers written by Shlien. This posting was done without Shlien’s knowledge or consent.
Shlien alleged that she was not aware of the presence of her papers on the web site until 1997, when she demanded that they be removed. Shlien filed the lawsuit in 1998.
The university claimed that Shlien’s suit was barred by the two-year statute of limitations and the lower court agreed, holding that the cause of action for negligence occurred in 1995 when the papers were posted on the web site and that the former student’s claim was time-barred. The state Supreme Court disagreed, saying that, “To determine when Shlien’s claim accrued, rather than look to a ‘publication’ date or dates, as did the district court, we must instead look to when the act or omission which Shlien alleges forms the basis of her negligence claim against the university occurred and, because the discovery rule is applicable, the date when Shlien discovered or reasonably should have discovered her injury resulting from such negligence.”
While the case has been remanded for further proceedings (including a decision on whether the university had been negligent in supervising the use of its web access by faculty), the real lessons are clear. First is the simple legal lesson that limits under the law are not always cast in stone where the World Wide Web is concerned. Once you post something to the internet, it may take on a life of its own. If it is stolen or defamatory or unauthorized, it may cause legal problemsand the statute of limitations may not apply until the offending material is actually discovered.
Even worse, because the web is a dynamic place where the boundaries of web sites are often blurred by copies, links, caches, and other technical demons, you may have removed the items from your web siteand yet they may still exist somewhere on the web and be traceable back to you.
Finally, there is the rather obvious problem of publishing student work on the web, even an intranet (because it may be downloaded or copied or moved to the web). Obtaining permission to publish student work is absolutely essential, even in a limited context. In addition, you will want to have parental consent for students under 18 (and the consent must be written and acknowledge that the parents have actually read the material). I would strongly urge that minor students never be personally identified as authors of any material actually posted on a school web site.