Thursday, March 31, 2016

More on the hyperlink issue, with a caution on weapons or security issues

I have written here before that there (April 13, 2013 is the biggest link) may be a minimal or marginal practical litigation risk in (knowingly) hyperlinking to defamatory material in a hyperlink. The risk might increase with video embeds.

However a May 2014 posting on a Trademark and Copyright blog by David Kluft discusses a Connecticut case, Vazquez v. Buhl, involving a CNBC link to a Buhl post apparently defamatory with respect to possible embezzlement. CNBC was named as a defendant for providing the hyperlink.
In the end, an appeals court ruled that CNBC was protected by Section 230, and denied the idea that CNBC had provided defamatory information of facilitated promotion of it.

On the other hand, there is an abstract by Sheri Wadwell from the Washington Journal of Law, from 2010, noting that the CDA Section 230 might not provide protection against fraud liability for knowingly providing hyperlinks to assist in securities fraud, link here.

The government has gone after people for deliberately linking to “classified” materials, as with the Barrett Brown case in Texas, often discussed here before.  The risk for an “amateur” blogger sounds very remote, but if “you” really do run into classified material somehow, tread carefully.  Considering contacting authorities under “see something, say something” if it is a credible threat.

And a British publication “Heartland” argues that hyperlinks themselves are less likely to be seen as defamatory in the US than UK .

All of this set ups a question about link to content that provides information on how to hack, or on how to build weapons.  This would be especially troubling with video embeds.  But a cursory search of YouTube will turn up videos on all kinds of destructive matters.  I won’t be too specific, but conducting DDOS attacks, writing malware, and building pressure cooker weapons will turn up. Perhaps the content would violate YouTube TOS and come down. One would hope so.  No problem with content on how to defend yourself (like by building Faraday cages).

When a blogger links to such a content, is he or she “abetting” terror (how some people would see it, especially if the blogger is an amateur and not part of the established press – that is, from the “fifth estate” rather than “fourth estate”) – or is he/she “reporting” on threats already posted and created by others?  What are the limits, if any, of blogger journalism?

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