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Don Burleson Blog 


 

 

 


 

 

 

 

  The Internet Journalist

Hyperlinking to libel is republishing a libel

Don Burleson
 

Burleson is co-author of Web Stalkers: Protect yourself from Internet Criminals & Psychopaths, $19.95 by Rampant TechPress. 

The law is evolving, but the explosion of blogs has made it clear that a blogger must be very careful when linking-to or repeating statements that might embarrass someone, even if they are completely true and verifiable.  Many states and countries have criminal laws against defamation, even if the embarrassing facts are completely true, and many jurisdictions have strict invasion of privacy laws.

 Here are some common ways to quickly get your pants sued off:

Linking to defamatory web pages

Just found some juicy gossip?  Hey, go-ahead and link to-it, it's a free country, right?  Wrong.  The law for republishing a defamation goes back hundreds of years in English common law, and many courts have affirmed that hyperlinking to a lie is republishing the lie.  Further, if the act of hyperlinking can be shown to be malicious, criminal libel penalties (including prison) can be levied:

Hird v Wood (1894) - This case held that evidence that a person sat by a defamatory placard beside a roadway, and pointed to it whenever others passed, was sufficient to constitute publication of defamatory material on the placard.

(Note: You do not need to be a citizen of a country to avail yourself of their libel protection.  For example, if you have a good reputation in Australia and an Australian citizen has linked to a libelous web page, then you may invoke the Australian criminal libel statutes).

Another common game among web villains is "Google bombing", having someone publish a defamation on an anonymous web page and then repeatedly hyperlinking to the lie in order to drive-up the false page ranking.

Linking to a defamatory web page is republishing the web page

As noted in Hird v. Wood, it's been long-established that you cannot "point" readers to a defamation without sharing in the responsibility.  This is especially important where the statute of limitations on a libelous web page has expired (often as little as 90 days).  While the victim may not be able to file charges against the original publisher, they do have a cause of action against those who repeat the libel via hyperlinking to the false content.  Also, bloggers are now being considered journalists and they now have the same fact-checking requirements as any other publisher, so ignorance of the law is not an excuse.  We see this reflected in mainstream publishing where blogger Insurance now required for any responsible publisher.

Hyperlinking and Jurisdictions

The research suggests that defamation laws vary widely between countries and jurisdictions.  Today's blogger is subject to the jurisdictions of over 190 countries and states and you must ensure that you do not inadvertently defame or injure someone by linking to a "false light" or a defamation.  In the United Kingdom the act of hyperlinking to a defamatory web page alone is legally actionable as “republishing defamation”.  It is also risky to link to a web page that defames some who lives in Georgia, a state that has tough laws against painting someone in a false light in the public eye.

See this 2003 Cyberlibel case where "an intermediate California Appellate court holds that the Communications Decency Act ("CDA") does not immunize a user of interactive computer services from a defamation claim arising out of her republication of statements authored by a third party, when the user knew or had reason to know of the falsity of those statements."

While the case law is vastly different between jurisdictions, we see this in the comprehensive legal review "Defamation via the Internet":

"Although the case law is not entirely clear, contrary to what many may believe, incorporating a hyperlink to associated Web content may possibly render a content
provider liable for publishing defamatory material published on the hyperlinked documents.

This is because a hyperlink may be interpreted as directing users to the defamatory content, in a similar way to the person pointing to the placard in Hird v Wood, or the letter referring to the defamatory speech in Lawrence v Newberry".

“He who furnishes the means of convenient circulation, knowing, or having reasonable cause to believe, that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication and becomes the instrument of the libeler” ( 34 NY Jur Libel and Slander, s 61; Youmans v Smith, 153 NY 214, 47 NE 265).

"Even if a hyperlink is not interpreted as directing users to linked content, however, a hyperlink provides access to other Web material. It is perhaps arguable that a content provider that includes a hyperlink could be regarded as a distributor of the linked material, and therefore liable for publishing the material."

Does this mean that someone can be held accountable for words published by a third party?  In the Pets Warehouse cyber-libel case, we see just such a complaint:

Linking can also create potential problems if the site doing the linking creates a false impression about their relationship to the site linked.

Additionally, the linked site may complain if the link misrepresents the nature of the linked site or casts it in an unfavorable way.

The laws suggest that one who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other, as noted in Nesewat v Salem (1999 FED App. 0119P (6th Cir.) )

(a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
 
(b) he knows that the statement is false or acts in reckless disregard to its truth or falsity

This Australian libel web site notes that linking-to or otherwise republishing a libel, is itself a libel:

In principle republication of a defamatory statement is itself a libel.

It is no defence to say that what is published is merely a repetition of a statement that was previously published and that did not incur prosecution. In principle every person who repeats or republishes a defamatory statement faces the same liability. . .

Australian law is an adversarial system, in which a defamatory statement is assumed to be false and must therefore be defended. Truth was allowed as a defence in defamation for first time in the UK under the 1835 Libel Act but - in practice - using that defence can be difficult.

These Australian citations are especially important because of a 200x case where an American publisher was hailed into Australia for cyberlibel.  Australia cases show a reputation for being very tough on those who injure the reputations of others:

"Footballer Andrew Ettinghausen for example was awarded some $350,000 in 1991 for an article imputing he'd allowed his genitals to be photographed while in the shower. . . A decade later prominent MPs Abbott and Costello and their wives received wives some $277,000 over gossip in Bob Ellis's Goodbye Jerusalem."

Hit them where they live

Recent court ruling have shown that the long-arm statutes of many States are insufficient to compel personal jurisdiction, and that defamation and cyberlibel claims are best made in the jurisdiction of the offender.  Often, defamation laws in Canada, Australia and the UK are far more favorable to defamation cases than the USA and the Defendant is required to prove their case.

One notable exception are the laws of New South Wales Australia, where their long-arm statutes allow anyone with a reputation in Australia to hail the authors of defamatory publications into Australian courts for publishing defamatory comments anywhere in the world.

Linking to illegal web sites

The responsible internet publisher also must worry about linking to pages that might be illegal, (such a illegal kiddie porn sites). Gilmor notes:

the courts agreed that even linking to the offending code—that is, posting a hyperlink to a web page containing the code, even one outside U.S. juris­diction, was also violating the law.

Defaming someone "anonymously"

You might think that you are being truly anonymous, but almost all self-publishing portals record the exact date-time and IP address of anonymous postings and judges have ordered ISP's reveal the identity of anonymous defamatory bloggers. 

Anonymity is an illusion, and judges routinely issue "John Doe" subpoenas to ISP's when someone's privacy has been violated (e.g. publishing a private e-mail on the internet). Once you have the time and IP address, another subpoena to the ISP will often reveal the true identity of an anonymous publisher.

Like it or not, millions of Americans have unwittingly become journalists, without the benefit of understanding the important laws regarding publishing of information that might hurt someone else.


Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.


 

 

  
 
  
 
 
 

 
 
 

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