[Nos. 59079-1-I; 59271-8-I. Division One. April 28, 2008.]
[1] Judgment Summary Judgment Review Role of Appellate Court. An appellate court reviewing a summary judgment undertakes the same inquiry as the trial court under CR 56(c). [2] Judgment Summary Judgment Burden on Moving Party Burden of Proof. A party moving for summary judgment has the burden of establishing (1) the absence of any genuine issues of material fact and (2) entitlement to judgment as a matter of law. [3] Judgment Summary Judgment Issues of Fact Material Fact What Constitutes. For purposes of a summary judgment proceeding, a material fact is one upon which the outcome of the litigation depends. [4] Judgment Summary Judgment Burden on Nonmoving Party Averment of Specific Facts Necessity. In a summary judgment proceeding in which the moving party's burden is satisfied, the nonmoving party cannot defeat the motion by relying on speculation, but must aver specific facts. [5] Judgment Summary Judgment Determination Interpretation of Facts. A court ruling on a motion for summary judgment views the facts submitted and the inferences therefrom in the light most favorable to the nonmoving party. [6] Libel and Slander Summary Judgment Prima Facie Case Elements. To survive a defense motion for summary judgment, a defamation plaintiff must aver sufficient facts to establish four elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. [7] Libel and Slander Fault Proof Degree Factors. The standard of fault for establishing a defamation action varies based on the nature of the plaintiff, the nature of the issue, the nature of the damages, and the existence of a privilege. [8] Libel and Slander Private Individual Fault Matter of Public Concern Suit for Actual Damages. Absent an applicable privilege, the standard of fault in a defamation action by a private party involving an issue of public concern in which actual damages are sought is negligence, not actual malice. [9] Libel and Slander Fault Negligence Burden of Proof. Where the standard of fault in a defamation action is negligence, the burden of proof is by a preponderance of the evidence. [10] Libel and Slander Privilege Nature Effect Shifting Burdens of Proof. Once a defamation plaintiff has established a prima facie case of defamation, the defendant can raise either an absolute or qualified privilege as a defense to liability for the defamatory statements. An absolute privilege or immunity absolves the defendant of all liability for defamatory statements. A qualified privilege may be lost if it is abused. If the court determines that a privilege applies, the burden of proof shifts to the plaintiff to demonstrate an abuse of the privilege. A showing of actual malice will defeat a conditional or qualified privilege. Actual malice must be shown by clear and convincing proof of knowledge or reckless disregard as to the falsity of the statements. A showing that a privilege applies raises both the standard of fault and the burden of proof, even if the plaintiff is a private individual. [11] Libel and Slander Summary Judgment Standard of Proof Relationship to Standard of Proof at Trial. In a defamation action, the plaintiff's evidentiary standard of proof for opposing a defense motion for summary judgment is the same as the standard of proof that applies at trial. [12] Courts Stare Decisis Supreme Court Holding Compliance by Court of Appeals Necessity. The Court of Appeals may not overrule a binding precedent of the Supreme Court. [13] Libel and Slander Qualified Privilege Public Concern Communicating Matter of Public Concern Involving Private Person. The fact that a communication about a private person involves a matter of public concern does not make the communication qualifiedly privileged. There does not exist a "public concern" privilege. [14] Libel and Slander Qualified Privilege Fair Reporting Privilege What Constitutes In General. Under the fair reporting privilege against defamation liability, the publication of defamatory matter is conditionally privileged if the matter originates in a report of an official action, proceeding, or meeting open to the public that deals with a matter of public concern. [15] Libel and Slander Qualified Privilege Fair Reporting Privilege Elements In General. An allegedly defamatory statement is not protected by the fair reporting privilege unless (1) the statement is attributed to an official proceeding and (2) the publication is an accurate and complete or a fair abridgement of the reported occurrence. [16] Libel and Slander Qualified Privilege Fair Reporting Privilege Persons Protected. The fair reporting privilege extends to persons who report on official actions and proceedings. [17] Libel and Slander Qualified Privilege Fair Reporting Privilege Elements Official Proceeding Scope. The fair reporting privilege against defamation liability cannot apply to statements that precede the onset of an official proceeding or that do not have a foundation in an official proceeding. [18] Libel and Slander Qualified Privilege Fair Reporting Privilege Legal Proceedings Attorney Publicizing Statements About Case Official Proceedings Not Begun. The fair reporting privilege against defamation liability does not extend to an attorney who publicizes statements about a case before official proceedings on the case have begun. [19] Libel and Slander Qualified Privilege Common Interest In General. A qualified privilege against defamation liability for the protection of common interests is recognized where the publication is for the protection of the interest of the publisher, the recipient or a third person, persons sharing a common interest, family relationships, or the public interest. The common interest privilege applies when the declarant and recipient have a common interest in the subject matter of the communication. The privilege generally applies to organizations, partnerships, and associations and arises when parties need to speak freely and openly about subjects of common organizational or pecuniary interest. The privilege has been applied in cases of limited publication on issues in common between the publisher and recipients. [20] Libel and Slander Qualified Privilege Common Interest Organizational or Business Relationship Necessity. The common interest privilege against defamation liability does not apply to a person making a communication who does not have an organizational or business relationship with the recipients of the communication. Where publication is made to the general public rather than to a specific group sharing the common interest, the common interest privilege does not apply. [21] Judgment Summary Judgment Evidentiary Rulings Review Standard of Review. A trial court's evidentiary rulings made in the course of a summary judgment proceeding are reviewed de novo by an appellate court. [22] Evidence Hearsay What Constitutes Purpose Truth of Matter Asserted. An out-of-court statement offered in evidence for a purpose other than to prove the truth of the matter asserted is not hearsay. [23] Libel and Slander Evidence Hearsay What Constitutes Publication of Statements Purpose for Admission. In a defamation action, a printout of a published article offered in evidence does not constitute hearsay if the printout is offered to show that certain statements were published and not to prove the truth of the contents of the article. [24] Evidence Hearsay Admissions Against Interest What Constitutes Statement of Party Opponent. Under ER 801(d)(2), an admission by a party-opponent is not hearsay. Under ER 801(d)(2)(i) and (ii), a party's own statement or a statement of which a party has manifested an adoption or belief in its truth is admissible as an admission. [25] Libel and Slander Evidence Hearsay Admissions Against Interest What Constitutes Posting of Defamatory Statements on Internet Web Site. For purposes of a defamation action, allegedly defamatory statements made by the defendant that the defendant posted on an Internet web site for the purpose of self publicity constitutes an admission by a party-opponent within the meaning of ER 801(d)(2). [26] Libel and Slander Elements Publication Posting on Internet Web Site In General. The posting of a statement on an Internet web site constitutes publication of the statement for purposes of a defamation action. [27] Judgment Summary Judgment Matters Considered Relevance Necessity. The matters considered by the trial court in a summary judgment proceeding must be relevant. [28] Libel and Slander Elements Publication Single Publication Rule What Constitutes. Under the single publication rule, any one edition of a book or newspaper or any one radio or television broadcast is a single publication for purposes of a defamation action. [29] Libel and Slander Elements Publication Multiple Communications Effect. In general, each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication for which a separate cause of action for defamation arises. [30] Libel and Slander Elements Publication Posting on Internet Web Site Separate Actionable Publication. The posting of an article on an Internet web site subsequent to its publication elsewhere can constitute a separate and distinct publication or republication of the article that will, by itself, support a separate action for defamation. [31] Libel and Slander Elements Publication Single Publication Rule Scope Republication of Article on Internet Web Site. The single publication rule does not necessarily extend to the republication of an article on an Internet web site. [32] Appeal Review Issues Raised by Appellate Court Issue Not Previously Raised. An appellate court will not raise an issue on its own motion that has not been raised by a party. [33] Judgment Summary Judgment Continuance Additional Discovery Review Standard of Review. A trial court's denial of a motion for a continuance of a summary judgment proceeding to allow further discovery is reviewed for a manifest abuse of discretion. [34] Judgment Summary Judgment Continuance Additional Discovery Denial Grounds. A CR 56(f) motion for the continuance of a summary judgment proceeding to allow further discovery may be denied if (1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence, (2) the requesting party does not state what evidence would be established through the additional discovery, or (3) the desired evidence will not raise a genuine issue of material fact. Only one of the three grounds is needed to deny the motion. [35] Judgment Vacation Discretion of Court. A motion for relief from judgment under CR 60(b) is addressed to the trial court's sound discretion. [36] Judgment Vacation Review Standard of Review In General. A trial court's denial of a CR 60(b) motion to vacate a judgment is reviewed for an abuse of discretion. A trial court abuses its discretion only if its decision is manifestly unreasonable or is based on untenable grounds. [37] Judgment Vacation Fraud Unfairness in Obtaining Judgment. A judgment may not be vacated on the grounds of fraud, misrepresentation, or other misconduct under CR 60(b)(4) unless the fraud, misrepresentation, or other misconduct preceded the judgment and caused the entry of the judgment such that the party against whom the judgment was entered was prevented from fully and fairly presenting its case or defense. [38] Judgment Vacation Fraud Proof Clear and Convincing Evidence Necessity. A CR 60(b)(4) motion to vacate a judgment requires clear and convincing evidence of fraud, misrepresentation, or other misconduct. [39] Judgment Collateral Estoppel What Constitutes In General. Collateral estoppel, or issue preclusion, bars the relitigation of an issue in a subsequent proceeding involving the same parties. Issue preclusion may occur even if the issue arises upon the assertion of a different claim or cause of action. [40] Judgment Collateral Estoppel Elements In General. Collateral estoppel does not apply to bar the litigation of an issue unless (1) the issue is identical to one decided in a prior adjudicatory proceeding, (2) the prior proceeding resulted in a final adjudication on the merits, (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior proceeding, and (4) application of the doctrine will not work an injustice on the party against whom it is asserted. [41] Judgment Collateral Estoppel Elements Prior Determination Subsequent Determination Effect. A party cannot be collaterally estopped from litigating an issue by an adjudication that occurs later in time from when the current proceeding was conducted. In order for the doctrine to apply, the issue must have been adjudicated in a prior proceeding. Nature of Action: The twin brother of a physician who was found guilty of the rape and sexual abuse of several of his patients sought damages for defamation from an attorney who represented some of the patient-victims in civil actions against the convicted brother. The twin brother also was a physician. The action was based on statements made by the attorney that were published in print, on television, and on an Internet web site stating or insinuating that the twin brother also engaged in sexual misconduct with the convicted brother's patients by impersonating the convicted brother. The twin brother alleged actual damages in the form of lost wages, impairment of earning capacity, damage to his reputation and good will, pain and suffering, physical illness, medical bills, and legal expenses. Superior Court: The Superior Court for King County, No. 04-2-36115-0, Palmer Robinson, J., on September 29, 2005, entered a summary judgment in favor of the defendants. Court of Appeals: Holding that a negligence standard of fault should have been applied in the summary judgment proceeding and that the standard of proof is by a preponderance of the evidence, the court reverses the judgment and remands the case for further proceedings. Timothy K. Ford- (of MacDonald Hoague & Bayless) and Mark A. Johnson- (of Johnson & Flora, PLLC), for appellant. Charles K. Wiggins- (of Wiggins & Masters, PLLC) and Howard M. Goodfriend- (of Edwards Sieh Smith & Goodfriend, PS), for respondents. Stephen A. Smith- on behalf of Allied Daily Newspapers, amicus curiae. [As amended by order of the Court of Appeals July 3, 2008.] Ά1 APPELWICK, J. Dennis Momah sued Harish Bharti, a plaintiff's attorney, for actual damages based on defamation. The trial court concluded that Bharti's defamatory statements were protected by a public interest privilege derived from Alpine Industries Computers, Inc., v. Cowles Publishing Co., 114 Wn. App. 371, 57 P.3d 1178 (2002), and applied an actual malice standard of fault. Bharti was granted summary judgment. Alpine creates no such privilege. The statements were not otherwise privileged. The proper standard of fault at summary judgment for defamation of a private party on an issue of public interest, where actual damages are sought, is negligence which is to be established by a preponderance of the evidence. We reverse and remand. Facts Ά2 Dennis Momah and his twin brother, Charles Momah, are both physicians. Charles Ά3 On September 19, 2003, the King County Journal published comments attributed to Bharti. Noel S. Brady, Doctor's Twin Draws SuspicionMore Say Physician Molested Them; Some Think His Brother Played a Part, KING COUNTY J., Sept. 19, 2003. Bharti is quoted as saying, "Several of the victims claim that Charles Momah was permitting Dennis Momah, who is a physician, to come and violate them without their permission." Id. And, "He was going there impersonating Charles Momah." Id. The King County Journal published another article on September 24, 2003, again quoting Bharti. Noel S. Brady, Doctor's Twin Added to Suit Alleging Rape, KING COUNTY J., Sept. 24, 2003. "Two twin brothers were taking turns having sex with patients on a regular basis without the patients' knowledge that they were two different people . . . . They started to believe that not only did they have a license to practice medicine, they had a license to rape women." Id. On September 30, Bharti and a client appeared on The Early Show. In response to a question about the State filing charges against Momah, Bharti responded, "Yes, he'stheDennis Momah is a defendant." The Early Show: The Dennis Momah Impersonation (CBS News television broadcast Sept. 30, 2003). At some point, Bharti posted the King County Journal articles on his web site, and they remained there through at least November 2004. Ά4 On behalf of clients, Bharti filed numerous civil suits and lodged complaints with the Washington Medical Quality Assurance Committee (MedQAC) against Momah. The complaints included allegations of malpractice, indecent liberties, assault and battery, and intentional infliction of emotional distress. Bharti eventually dismissed the suits against Momah. Bharti claimed he dismissed the lawsuits to get more evidence against Momah. Momah has never been charged with any criminal activities. MedQAC has also cleared Momah of any wrongdoing, after receiving proof that he was out of town during all the alleged incidents. Ά5 In November 2004, Momah filed a defamation suit against Bharti stemming from the statements that appeared in the Journal, on the CBS Early Show, and those statements Bharti reposted on his web site. Momah alleged actual damages in the form of lost wages, impairment of earning capacity, damages to his reputation and good will, pain and suffering, physical illness, medical bills, and legal expenses. Bharti filed a motion for summary judgment claiming his statements were privileged and lacked the requisite fault. The court granted the motion. Momah now appeals. Discussion I. Standard of Fault Ά8 At common law, a plaintiff claiming defamation could recover presumptive damages by proving a false publication subjecting the defamed individual to hatred, contempt, or ridicule. Haueter v. Cowles Publ'g Co., 61 Wn. App. 572, 578, 811 P.2d 231 (1991). This changed when the Supreme Court began "constitutionalizing" defamation law, overturning two centuries of libel law to ensure the uninhibited debate on public issues embodied in the First Amendment. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 765, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985) (J. White, concurring). Ά9 The first step in this movement toward protecting public debate came when the Court required public officials to prove actual maliceknowledge or reckless disregard for falsityin order to prove defamation. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Eventually, the Court determined that the trend toward promoting open debate endangered individual reputations, and a balance between these competing forces was required. To this end, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 346, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), the Supreme Court determined that states could allow private individuals to bring defamation claims based on negligence, rather than actual malice. [A] private individual, who is neither a public figure nor official, may recover actual damages for a defamatory falsehood, concerning a subject of general or public interest . . . on a showing that in publishing the statement, the defendant knew or, in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect. Id. at 445 (emphasis omitted). In the wake of "constitutionalization," the requisite standard of fault varies based on the nature of the plaintiff, Ά12 When the standard of fault is negligence, the applicable burden of proof is preponderance of the evidence. Haueter, 61 Wn. App. at 582. Once the plaintiff has established a prima facie case of defamation, the defendant can raise either an absolute or qualified privilege to defend against liability for defamatory statements. See Bender v. City of Seattle, 99 Wn.2d 582, 600, 664 P.2d 492 (1983); Alpine, 114 Wn. App. at 381-82. "An absolute privilege or immunity is said to absolve the defendant of all liability for defamatory statements. A qualified privilege, on the other hand, may be lost if it can be shown that the privilege has been abused." Bender, 99 Wn.2d at 600 (citations omitted). If the court determines that a privilege applies, the burden of proof shifts to the plaintiff to demonstrate abuse of that privilege. Alpine, 114 Wn. App. 382. "[A] showing of actual malice will defeat a conditional or qualified privilege." Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 183, 736 P.2d 249 (1987). Actual malice must be shown by clear and convincing proof of knowledge or reckless disregard as to the falsity of a statement. Bender, 99 Wn.2d at 601. Thus, the showing that a privilege applies raises both the standard of fault and burden of proof, even where the plaintiff is a private individual. Id. 601-02. Ά13 The burden of proof is the same at both summary judgment and trial. II. Privilege Ά14 Relying on Alpine, the trial court found that Bharti was protected by a qualified privilege for statements made against a private person about a public interest as articulated in Alpine. Therefore, to survive summary judgment, the court required Momah to prove Bharti's abuse of that privilege by clear and convincing evidence of malice. Momah contends that the trial court misinterprets Alpine and, therefore, erred in applying the privilege. Ά15 The trial court also determined that two other privileges, asserted by Bharti, did not applythose protecting reports of an official proceeding and communications in interest of the speaker, recipient, or third party. Bharti asserts the public interest privilege was properly applied. In the alternative, he asks that this court affirm based on either of the other alleged privileges despite the trial court's conclusion that neither applied. A. Privilege for a Matter of Public Concern Alpine Industries v. Cowles Publishing Co., 114 Wn. App. 371 (2002) recognizes a qualified privilege when the publication involves a private person, but concerns a matter of public interest or concern . . . . [T]here can be little question but that the issue whether or not there is a physician or are physicians who are abusing their patients in the ways alleged by the plaintiffs in the underlying lawsuits is a question of public concern. This misinterprets Alpine, which neither created nor recognized a privilege for matters of public concern. Ά17 In Alpine, a corporation filed a defamation suit against a newspaper for portions of a story about a federal judgment entered against the corporation for selling counterfeit software. 114 Wn. App. 374. The plaintiff was a private figure and the issue was of public concern. In its analysis, the court properly applied the fair reporting privilege because the newspaper was reporting on the official court proceedings. Id. at 385-86. "A newspaper has a qualified or conditional privilege to report legal proceedings provided the publication is a fair and accurate statement of the contents and is made without malice." O'Brien v. Tribune Publ'g Co., 7 Wn. App. 107, 117, 499 P.2d 24 (1972). As the newspaper report was a substantially accurate and fair portrayal of the outcome of an official proceeding, the privilege precluded liability. Alpine, 114 Wn. App. at 387. Alpine affirmed the ruling of the trial. Its analysis of the fair reporting privilege was dispositive and correct. Ά18 The Alpine opinion continued with an additional analysis under the subheading "C. Fault and Burden of Proof." Id. Alpine reiterated the well established rules that a private figure plaintiff must show negligence by a preponderance of evidence, and that the existence of a privilege necessitates proof of abuse of privilege through clear and convincing evidence of actual malice. Id. at 388. The Alpine court noted that Washington had not yet articulated a standard of fault for disputes involving a private figure and issues of public concern. Id. at 392. Then the court announced a new rule: "[A]n actual malice standard of fault should apply where a private figure plaintiff is allegedly defamed by a statement pertaining to a matter of public concern." Id. at 393. The court believed this "preserves the constitutionally-based distinction between matters of public and private concern in private figure defamation cases." Id. Undoubtedly, the trial court in this case relied upon this section when it found a privilege existed. Ά19 The proper application of the standard articulated in Alpine becomes clear at the end of the opinion where the court observes: "Assuming for discussion one or more of the challenged statements were too inaccurate for purposes of the fair reporting privilege and viewing the record in a light most favorable to Alpine, not even a scintilla of evidence indicates Mr. Sowa or Cowles had knowledge of any alleged falsity or that they were reckless." Id. at 394. Here, it becomes clear that in section C, the court was analyzing whether Cowles had abused the fair reporting privilege, and thereby forfeited the protection of the privilege. The key sentence must be read in context to include a predicate clause: when it is alleged that the fair reporting privilege invoked in the case has been abused, "[w]e have not articulated a definitive standard of fault for private figurepublic concern defamation cases." Id. at 392. Ά20 Moreover, the Alpine court did not claim to create a new privilege and it could not have done so. The Alpine decision, itself, correctly describes and cites the applicable Washington standard of negligence for private plaintiffs. " '[A] private individual, who is neither a public figure nor official, may recover actual damages for a defamatory falsehood, concerning a subject of general or public interest, where the substance makes substantial dangers to reputation apparent, on a showing that in publishing the statement, the defendant knew or, in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect.' " Id. at 389 (alteration in original) (quoting Mark v. Seattle Times, 96 Wn.2d 473, 483, 635 P.2d 1081 (1981) (quoting Taskett, 86 Wn.2d at 445)). Indeed, as discussed above, both federal and Washington case law have established negligence as the standard for private plaintiffs. The Court of Appeals could not overrule this binding precedent. Yet, the privilege recognized by the trial court would effectively overrule this standard by making statements privileged every time a matter of public concern was involved and raising the standard of fault to actual malice. Ά21 The trial court erroneously relied on the language in Alpine as a basis for a qualified privilege for communications on matters of public concern. No such privilege exists. Since federal and state law do not support a privilege for communication on matters of public interest, Bharti can only receive the protection of the actual malice standard if some other privilege applies to his statements. Otherwise, as a private individual, Momah need only prove negligence by a preponderance of evidence both at summary judgment and at trial. B. Fair Reporting Privilege Ά24 On September 19, 2003, the King County Journal published its first article attributing to Bharti that accusations of sexual impropriety had been made against Momah and that he was under investigation. That article stated that Bharti made his comments the day before. On September 19, Bharti filed a complaint but he did not name Momah as a defendant. Bharti filed the first suit naming Momah as a defendant on September 24 at 3:54 p.m., six days after his initial statement to the Journal and five days after publication of the article. The Journal published the second article containing allegations against Momah on September 24 and included comments made by Bharti on the previous day. This article stated that Bharti had added Momah to the complaint, which alleged that the brothers took turns sexually assaulting patients. Ά25 The fair reporting privilege cannot apply to the statements since an official proceeding did not yet exist. Furthermore, the statements made on the CBS Early Show on September 30 did not have a foundation in an official proceeding. In response to a question about the district attorney filing charges, Bharti responded, "Dennis Momah is a defendant." When Bharti made this comment, no criminal charges had been filed against Momah. None of the allegedly defamatory statements relate to an existing official proceeding so they cannot support the fair reporting privilege. The trial court correctly concluded that this privilege does not apply. C. Common Interest Privileges Ά26 Bharti also asserts his statements were privileged because they were "good faith statements in the interests of the publisher, the recipient, or persons sharing a common interest." The trial court determined that the publication of the statements made in this case exceeded the scope of publication afforded a qualified privilege as recognized under existing case law. The trial court did not err in its conclusion. the publication is for the protection of the interest of the publisher; the recipient or a third person; persons sharing a common interest; family relationships; public interest. In connection with the last mentioned type of privilege the publication is privileged only when made to a public officer or a private citizen who is authorized to act. The privilege does not extend to a publication to the entire public. Owens v. Scott Publ'g Co., 46 Wn.2d 666, 674, 284 P.2d 296 (1955) (citations omitted); see also Twelker v. Shannon & Wilson, Inc., 88 Wn.2d 473, 478, 564 P.2d 1131 (1977). "The common interest privilege applies when the declarant and the recipient have a common interest in the subject matter of the communication." Moe v. Wise, 97 Wn. App. 950, 957-58, 989 P.2d 1148 (1999). This privilege generally applies to organizations, partnerships, and associations and "arises when parties need to speak freely and openly about subjects of common organizational or pecuniary interest." Id. at 958-59. The court has applied this privilege in cases of limited publication on issues in common between the publisher and recipients. See, e.g., Gem Trading Co. v. Cudahy Corp., 92 Wn.2d 956, 958-59, 603 P.2d 828 (1979) (former employee brought defamation action against employer who told vendors that orders placed by the employee were unauthorized); Moe, 97 Wn. App. at 954 (chief executive officer of a company in chapter 11 bankruptcy sent a letter to creditors attributing the filing to plaintiff's actions); Ward v. Painters' Local Union No. 300, 41 Wn.2d 859, 866, 252 P.2d 253 (1953) (privilege extended to union members who made written and oral statements that a member had misappropriated funds while an officer of the union). Ά29 None of the privileges apply to Bharti's comments to the Journal and or made on the CBS Early Show. Since Bharti is not protected by a privilege, Momah does not need to show abuse of the privilege by clear and convincing evidence. Momah is a private individual and therefore subject to the negligence standard of fault and the preponderance of evidence burden of proof. Because the trial court erroneously applied the privilege and the higher burden of proof, we vacate the summary judgment. III. Evidentiary Issues A. Internet Print-outs Ά31 The trial court excluded proffered print-outs of biographical information, comments from clients, information about Bharti's class action suit against Boeing, and media reports about Bharti's cases, including the suits against the Momah brothers. Bharti does not dispute the authenticity of the print-outs from his law firm's web site but contends that the exhibits are hearsay. The court provided no reasons for exclusion of the information printed directly from Bharti's web site, but we assume the court agreed the documents are hearsay. In his briefing, Bharti provides no legal citations to support his defense of the trial court's exclusion of the evidence. He merely states that the evidence is hearsay and irrelevant and that Momah was not prejudiced by exclusion of the evidence. Ά34 Although the statements are not hearsay, they must still be relevant in order to be admissible. Bharti alleges the web site information is irrelevant because it is merely biographical or information about other cases. Momah claims, "the entire website provides vivid, non-hearsay evidence of Mr. Bharti's motive of self promotion and his reckless disregard of the truth in service of that cause." Although as a private individual Momah need only prove negligence, if the trial court recognized Bharti's assertion of privilege, Momah would need to establish abuse of privilege to survive summary judgment. Abuse of privilege requires clear and convincing evidence of actual malice. Since Momah would then need to show Bharti's malice in making the statements, proof of a motive for making false statements would have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. As a result, the web site information may tend to show a motive for self-promotion and may be relevant to malice. The trial court erred in excluding the evidence. B. Police and Medical Reports Ά37 Below, Bharti contends that the police and medical investigation records are hearsay or hearsay within hearsay. Momah argues for admission under ER 803(a)(3) because he did not offer the documents to show the truth of the statements. Rather, Momah contends the record shows that Bharti knew that the witnesses he relies upon to provide the foundation for his statements had not made the alleged accusations. Alternatively, Momah argues for admission of the reports as circumstantial evidence of the minds of Bharti's sources. These documents do stem from statements made to the police and medical investigators contemporaneous with Bharti's public comments to the media. Since Bharti produced these documents during discovery for this case, he clearly received the information at some point, but the record before us does not show conclusively when this discovery took place, or that they came into Bharti's possession before the defamatory statements. Without this key information, the investigative reports are not relevant to prove either Bharti's or his witnesses' states of mind. The trial court properly excluded exhibits 37, 39, 40, 43, and 47. IV. Republication Ά39 In Herron, an allegedly defamatory statement originally aired during the 5:30 p.m. newscast. Id. at 518-19. A different broadcaster then revised and read the revised report on the 11 p.m. news the same evening. Id. The two reports contained similar contents, but the 11 p.m. story included additional statements. Id. The court determined that "[t]he 11 p.m. newscast was the result of a conscious independent act, using a new script and broadcaster, and so clearly constitutes a separate publication, even under the single publication rule." Id. at 521. This comports with the Restatement discussion of the single publication rule. "[I]f the same defamatory statement is published in the morning and evening editions of a newspaper, each edition is a separate single publication and there are two causes of action. . . . In these cases the publication reaches a new group and the repetition justifies a new cause of action." RESTATEMENT (SECOND) OF TORTS § 577A cmt. d. Ά40 Based on this theory, if the Journal had published the same article mentioning Momah on two separate days, he could bring two causes of action since the two editions represent separate publications. Similarly, if Bharti made the same statement on two different occasions, Momah would have two causes of action. "It is the general rule that each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises." RESTATEMENT (SECOND) OF TORTS § 577A cmt. a. Ά41 In this case, Bharti has essentially made the same statement two different timesonce when he spoke to the Journal and once when he posted the article quoting those remarks on his web site. Bharti acted on two occasions. His efforts were aimed at different audiencesthose that read the Journal and those that visit his web site. The fact that the article was published previously by the Journal makes no difference. Bharti made a separate communication to a new audience when he posted to his web site. This scenario does not differ from a newspaper publishing the same article on different days or a newscast reading the same copy at 5:30 p.m. and 11 p.m. Bharti republished his previous statements in a different form. The two statements represent separate and distinct publications. Bharti may be liable for both as separate causes of action. Ά42 To apply the single publication rule in this context, as Bharti advocates, would allow an alleged defamer the opportunity to republish his libelous statements at will on a multitude of web sites on the Internet without fear of added liability. We decline to do so. As long as the publications meet the elements of defamation at the time of its posting on the web site, the republication of the articles on the web site is a separately actionable statement of defamation. Ά43 The case law from other jurisdictions cited by both Bharti and the amicus curiae do not persuade us that other jurisdictions would interpret Bharti's communications here as a single publication. In these cases, the courts were asked to determine whether causes of action arise continuously as a result of a web site posting for the purposes of the statute of limitations. See Firth v. State, 98 N.Y.2d 365, 775 N.E.2d 463, 747 N.Y.S.2d 69 (2002); Oja v. U.S. Army Corps of Eng'rs, 440 F.3d 1122 (9th Cir. 2006); Churchill v. State, 378 N.J. Super. 471, 876 A.2d 311 (2005); Traditional Cat Ass'n v. Gilbreath, 118 Cal. App. 4th 392, 13 Cal. Rptr. 3d 353 (2004); Van Buskirk v. New York Times Co., 325 F.3d 87 (2d Cir. 2003). The courts applied the rule in this context to mitigate endless triggering of the statute of limitations, multiplicity of suits, and harassment of defendants that would arise because of the number of viewers and indefinite lifespan of a web site. Firth, 98 N.Y.2d at 370. We have not been asked to resolve any questions regarding the statute of limitations and decline to raise the issue sua sponte. Since this case does not present a statute of limitation issue, the cited case law is inapposite. Bharti's reposting of the Journal articles relating his statements about Momah are distinct acts, pursuable as separate causes of action. Ά44 In light of the reversal of summary judgment, we decline to address the correctness of the rulings on the motion to complete discovery and motion to vacate. Ά45 The trial court properly excluded from evidence the police and MedQAC reports. But, the trial court erroneously excluded the print-outs from the website. Finally, because the trial court erroneously applied a privilege to Bharti’s statements, and required Momah to prove actual malice by clear and convincing evidence, we vacte the summay judgment order and remand for further proceedings. GROSSE and COX, JJ., concur. Reconsideration granted in part and opinion modified July 3, 2008.