Delaware Supreme Court Clarifies the “Of-and-Concerning” Test and Statute-of-Limitations Tolling for Digital-Age Defamation and Privacy Claims
Commentary on John Paul Mac Isaac v. Politico LLC, 319 A.3d 878 (Del. 2025)

1. Introduction

The Delaware Supreme Court’s en banc decision in John Paul Mac Isaac v. Politico LLC (Aug. 25, 2025) is the first state-high-court opinion to examine, in depth, how traditional defamation and privacy doctrines apply when digital evidence, viral news cycles, and political “information warfare” converge. The Court affirmed dismissal of a computer-repair owner’s defamation suit against Politico, Robert Hunter Biden, and the Biden for President Campaign Committee (“BFPCC”) and upheld dismissal of Hunter Biden’s counterclaims for invasion of privacy. The ruling solidifies three key propositions under Delaware law:

1. The “of-and-concerning” element remains the gateway to any defamation action; a plaintiff must plead a reasonably discernible link between the challenged words and himself, even in a social-media age where readers stitch together facts from multiple sources.
2. Limited-purpose-public-figure status does not need to be reached when the publication is not “of and concerning” the plaintiff; courts may dispose of claims at the first element and avoid difficult actual-malice analyses.
3. For privacy torts, the two-year statute of limitations in 10 Del. C. § 8119 starts when a plaintiff is on “inquiry notice,” and continuing online republication (or later “tell-all” books) will not toll the period.

2. Summary of the Judgment

Chief Justice Seitz and a five-justice Court unanimously affirmed the Superior Court. The main holdings are:

• Against Politico: The headline “Hunter Biden story is Russian disinfo, dozens of former intel officials say” did not defame Mac Isaac because it did not identify him directly or by implication. Even if the body of the article later mentioned “a Mac shop owner,” the headline—the only challenged statement—would not be understood by a reasonable reader as referring to Mac Isaac.
• Against Hunter Biden: Hunter Biden’s CBS interview (April 2021) speculated the laptop “could be Russian intelligence” and did not name Mac Isaac; therefore, no reasonable viewer would take the remark to accuse Mac Isaac of wrongdoing.
• Against BFPCC: The campaign’s 2020 statements labelling the laptop story “Russian disinformation” were time-barred (suit filed more than two years later). Mac Isaac waived arguments on tolling in the Supreme Court, so dismissal stands.
• Hunter Biden’s Counterclaims: His six privacy claims (intrusion and publication, plus conspiracies/aiding and abetting) accrued by Oct. 14 2020 when the New York Post article revealed the laptop. Later podcasts, thumb-drive sales, and Mac Isaac’s 2022 book were new acts but did not reset limitations. The claims are thus barred.

3. Analysis

3.1 Precedents Cited and Their Influence

• Doe v. Cahill, 884 A.2d 451 (Del. 2005): Provided the six-factor defamation test. The Court leaned heavily on its articulation of the “of-and-concerning” requirement.
• Cousins v. Goodier, 283 A.3d 1140 (Del. 2022): Clarified that judges, not juries, decide at the pleading stage whether words can reasonably be read as concerning the plaintiff.
• Spence v. Funk, 396 A.2d 967 (Del. 1978) and Restatement (Second) of Torts § 652: Grounded the privacy-intrusion and privacy-publication causes of action.
• U.S. Supreme Court cases (New York Times v. Sullivan; Gertz v. Welch; Hepps): Informed—but were not dispositive in—limited-purpose public figure discussion. The Delaware Court purposely bypassed the issue once it found no “of-and-concerning” link.
• Wal-Mart v. AIG, 860 A.2d 312 (Del. 2004): Adopted the “time-of-discovery” tolling rule, which the Court distinguished here.

3.2 Core Legal Reasoning

1. Step-One Focus: The Court emphasized that “truth, falsity, actual malice—or even public-figure status—are irrelevant until a plaintiff first demonstrates the statement is ‘about’ him.” This serves judicial economy by allowing early dismissal.
2. Context Matters, But Only to a Point: Mac Isaac argued that readers would connect the dots from the Politico headline to prior media coverage identifying him. The Court deemed that inference too tenuous: headline readers need not consult earlier articles to grasp its meaning.
3. Substantial-Truth Doctrine: Because the article (and sub-headline) accurately summarised the former intelligence-officials’ letter, any incidental mention of a Delaware shop owner was true, negating defamation even if the plaintiff could pass the “of-and-concerning” test.
4. Privacy Statute of Limitations: For intrusion, the “injury” occurred when Mac Isaac first accessed data (April–Dec 2019) and certainly by public disclosure (Oct 2020). Inquiry notice arose once the New York Post story ran. Subsequent republications are separate wrongs but do not toll the original cause of action unless separately pleaded.
5. Waiver on Appeal: The Court faulted Mac Isaac for omitting arguments on relation-back (Rule 15(c)) and on the merit of the Biden-campaign statements—illustrating the perils of selective briefing.

3.3 Potential Impact

• Media Defendants: Headlines can still create liability, but Delaware courts will demand a direct nexus between headline and plaintiff. Editors may feel more secure that “background characters” cannot sue for a splashy headline unless expressly named.
• Plaintiffs: Litigants must gather public-reaction evidence (tweets, comments, broadcasts) showing readers actually linked the statement to the plaintiff. Mere plausibility that someone could connect dots is insufficient.
• Privacy Claims in Digital Releases: Victims of leaks must sue within two years of first widespread publication. Each new platform (podcast, book) is not automatically a fresh tort; plaintiffs should plead each republication separately.
• Strategic Litigation Sequencing: The Court signalled that dispositive motions attacking the “of-and-concerning” prong may shortcut expensive discovery on malice or falsity. Expect earlier Rule 12 challenges.
• Political-Campaign Speech: By declining to reach actual-malice questions, the Court left open whether campaign rhetoric labelling stories as “disinformation” enjoys heightened First-Amendment protection—an issue likely to resurface.

4. Complex Concepts Simplified

“Of and Concerning”

The publication must reasonably be read as referring to the plaintiff. If a name, description, or unmistakable reference is missing, courts ask whether an average reader would connect the dots without specialized knowledge.

Limited-Purpose Public Figure

A person who voluntarily thrusts himself into a public controversy to influence its outcome. If so classified, he must prove “actual malice” (knowledge of falsity or reckless disregard) to win.

Inquiry Notice

When facts would prompt a reasonable person to investigate potential injury. Once on inquiry notice, the statute of limitations starts—even if the plaintiff lacks full detail.

Substantial Truth

Minor inaccuracies do not create liability if the “gist” or “sting” of the statement is true.

Relation-Back (Rule 15(c))

Allows an amended complaint to “relate back” to the original filing date if the new defendant received notice and knew the action should have been brought against it. Failure to brief this point waives it on appeal.

5. Conclusion

Mac Isaac v. Politico LLC re-affirms Delaware’s fidelity to first-principle defamation doctrine—especially the threshold “of-and-concerning” test—while modernising its application to today’s instantaneous, multi-platform news ecosystem. Plaintiffs cannot rely on cumulative media mosaics to establish that a contested headline points to them; explicit linkage is indispensable. Likewise, privacy plaintiffs must act promptly once a data leak becomes public knowledge; ongoing online chatter does not pause the clock. The decision therefore offers a clearer roadmap for litigants and media organisations navigating the fraught intersection of political speech, digital disclosures, and personal reputation in the twenty-first century.