Hyperlinking to libel
is republishing a libel
Burleson is co-author of
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
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,
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
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
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
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
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
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.
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
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
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
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