Saturday, April 13, 2013

Can a mere hyperlink lead to a defamation lawsuit? It may be "safer" in Canada than in the US



Can a blogger or social media user be held responsible for libel for merely a hyperlink to defamatory content posted by someone else?
   
It seems that he or she can, and perhaps more so in the US than in Canada.  The Electronic Frontier Foundation page on libel and defamation never quite gets around to this exact point. It does say that republication of defamatory content may be actionable as defamation. The basic EFF link is here. It does go on to mention Section 230 protection for hosts of forums or for bloggers who allow comments. 

The question is different from those issues concerning hyperlinks and copyright (March 31, 2013). 

On October 2011, the Canadian Supreme Court had ruled  that “Internet links are not libel”, as in a CBC story by Megan Fitzpatrick (website url) here.
  
Search engines refer repeatedly to the Canadian decision but give little guidance for the US.
  
There is a “single publication rule” which may prove applicable, as explained in this Wiki.
   
There is a paper on HKLaw by Drew Shenkman in June 2010 (link)  which goes on to discuss some cases in New Jersey and California and suggests that the “single publication rule” is likely to reduce liability exposure to "linkers”, with the source here (the article is called "Defamation by Click").

On the other hand, there is this stern warning  from Oracle (and Burleson Consulting) on the matter, an article that appears older, link here.

It would seem that a blog posting, tweet or Facebook posting that merely reproduce a link to a defamatory article without providing any additional context  could present some risk.  So would intentionally providing more links in order to cause search engine results to present a “defamatory impression” and harm “online reputation”.
   
It would seem that the issue could also invite SLAPP lawsuits in some states.  A plaintiff could try to intimidate an amateur publisher, claiming that the extra article was gratuitous and therefore intended only to harm (although the single publication rule could help here, as could the “street smarts” notion that “the damage to reputation was already done” by first publication.  One problem is that frivolous suits can be brought for anything.  Without further legal protection, plaintiffs are limited only by the notion that courts could censure  or penalize their attorneys for bringing frivolous suits in bad faith. 

Don't "Blame Canada"!

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