Rethinking hyperlinking

Media scholars have noted for years that news outlets lag significantly behind blogs in their use of hyperlinks. But recent court cases suggest that news media may want to increase their use of hyperlinks as a way of defending against defamation lawsuits.

Three scenarios demonstrate ways that hyperlinks have helped media defendants.

Scenario #1: Facts supporting an opinion

Suppose a blogger writes, “I think the mayor is a thief.” Even though it begins with “I think” and sounds like an opinion, it is followed by an assertion of fact. Standing alone, that statement could be defamatory. But if the writer provided hyperlinks to accurate accounts on which the writer based this conclusion, then the statement may be considered “pure opinion” and not defamation.

If readers are presented with a series of facts (either written in the story itself or via hyperlinks), they can follow how the writer developed the opinion – and readers can use the facts presented to form their own conclusions. An opinion, even though it’s based on facts, cannot be proven true or false, and thus cannot be defamatory. Without supporting facts, the reader is forced to take the writer at his or her word, which is the same as stating a fact.

A federal district court in California came to the same conclusion as far back as 1999. In Nicosia v. De Rooy, Diane De Rooy alleged on her website that Gerald Nicosia embezzled money from the estate of Jack Kerouac’s daughter. The court ruled that she sufficiently disclosed the underlying facts behind her claim by hyperlinking to other articles she wrote on her website.

“These [hyperlinked] articles were at least as connected to the news group posting as the back page of a newspaper is connected to the front,” the court wrote, and therefore they should be considered facts she disclosed to support her claim.

New York courts have confronted this issue at least three times since 2011. For example, in Silvercorp Metals Inc. v Anthion Management LLC, a silver producer sued over Internet postings that called into the question the quality of its ore and accused the company of having “questionable” customers and overvalued stock. The court ruled that the statement about the ore having “low silver content” was protected opinion because it was accompanied by hyperlinks to lab reports that backed it up. Also, the comment about “questionable” customers was opinion because the posting provided documents explaining that the customer in question could not be found at a given address. (The other two cases are Seldon v. Compass Restaurant and Sandals Resort International v. Google).

This do not mean you can say whatever you want so long as you add hyperlinks. The linked resources must support your statement and provide a basis for your opinion.

It is best to explain the underlying facts within the text of your article and not rely solely on hyperlinks. Links can break, or you could find yourself in a court that doesn’t recognize the importance of hyperlinks. But adding hyperlinks as a precaution or as additional information certainly couldn’t hurt.

Scenario #2: Piggybacking on another’s fair report privilege

The “fair report privilege” is a legal defense to defamation. It provides immunity from liability – even if the statement turns out to be false – so long as you obtained the information from an official public document or statement by a public official, you cited the document or official as your source, and you fairly and accurately relayed the information from the source.

For example, in court documents, a soon-to-be-ex-wife accuses her famed politician husband of having an affair. A newspaper reporter accurately and fairly reports on the accusation, citing the court records. A blogger then writes that “allegations of an affair surface.” The blogger does not mention the court documents, but he hyperlinks to the original news story. The husband, in fact, did not have an affair. The statement was false.

Traditionally, the first reporter would be covered by the fair report privilege because she cited court documents, but the blogger – without disclosing that his information came from public documents – would not be protected by the privilege.

A federal court in New York recently grappled with this issue in Adelson v. Harris. In Adelson, the National Jewish Democratic Council (NJDC) wrote on its website that “reports surfaced” that Sheldon Adelson “’personally approved’ of prostitution in his Macau casinos.” The phrase “personally approved” was hyperlinked to an Associated Press story, which quoted a court document in which a former casino executive accused Adelson of approving of prostitution at the casino.

Because the Associated Press story was protected by the fair report privilege (even if the allegation was false), the court ruled that the NJDC was also protected by the privilege because it linked to the AP story. (The case is currently on appeal.)

The court praised the use of hyperlinks as a modern-day footnote – only better because readers have immediate access to sources with a single click instead of having to trudge to a library to look them up.

“It is true, of course, that shielding defendants who hyperlink to their sources makes it more difficult to redress defamation in cyberspace,” the court wrote. But that’s a good thing. “It is to be expected, and celebrated, that the increasing access to information should decrease the need for defamation suits,” the court wrote.

There are a few limitations to this defense, however.

First, not all states recognize a fair report privilege, and those that do vary as to what documents or statements are covered by the privilege.

Second, Adelson was decided by a federal court in New York interpreting Nevada law. Another court interpreting another state’s law might rule differently. It is best to always attribute your information directly to the public document or official from which you obtained the information and only rely on the hyperlinking defense as a backup.

Scenario #3: Providing context

When determining whether a statement is defamatory, a court will look at the context in which it was written, trying to put itself in the reader’s shoes. The court will consider the statement in relation to the headline, the photographs, the location of the article (on the front page versus the editorial page), the tone of the piece, and so on. Hyperlinks – and the sites to which they lead – can be considered part of the context surrounding an allegedly defamatory statement.

This is probably the least-tested of the three scenarios. The federal district court in Washington, D.C., addressed it in a very limited manner in Boley v. Atlantic Monthly Group. In Boley, a writer for The Atlantic magazine referred to George Boley, a former Liberian public official, as a “warlord.” In determining whether Boley was a limited purpose public figure (which would make defamation harder to prove), the court looked at the context in which the writer called Boley a warlord.

The writer hyperlinked to an earlier story he wrote, which explained in detail Boley’s role in the Liberian Civil War. The court ruled that, in the context of the Liberian Civil War – the context in which the writer was clearly referring, because of the hyperlink – Boley was a limited purpose public figure.

Potential pitfalls to hyperlinking

Republishing defamatory statements. If the content to which I link helps me disprove defamation, can the reverse be true? Can linking to a defamatory statement make me liable for it? Probably not.

Not many realize that you can be liable for defamation simply by repeating, or “republishing,” a defamatory statement. Yet courts seem to agree that linking to someone else’s defamatory statement does not mean that you “adopt” that statement as your own or “republish” it.

In Vazquez v. Buhl, NBCUniversal posted a link to an article written by Teri Buhl, described by NBCUniversal as a “veteran financial reporter,” and then included this introduction before the link: “I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.” A man then sued Buhl for defamation, and he sued NBCUniversal, claiming it republished the allegedly defamatory statement.

The Connecticut trial court ruled that NBCUniversal could not be held liable for defamation.

“Even though NBCUniversal’s actions might have increased readership of the defamatory statements,” the court wrote, “its actions do not amount to either the creation or development of the allegedly defamatory statement which it did not author or even edit.” (Although the court called them “defamatory statements,” the suit against Buhl had previously been dismissed.)

As Micah Ratner, attorney for The Atlantic in Boley v. Atlantic Monthly Group, explained, “You’re not republishing what you’re referencing; you’re pointing your reader to it.”

In a string of related cases, courts have also found that hyperlinking does not equal “republishing” for statute-of-limitations purposes. In New York, for example, if you don’t sue someone for defamation within a year, you lose your chance.

In Haefner v. New York Media, someone missed the one-year statute of limitations but tried to argue that, because New York Magazine hyperlinked to the allegedly defamatory article within the past year, the hyperlinking restarted the clock and kept the claim alive.

The court disagreed. Hyperlinking does not republish the defamatory content, the court ruled, so it does give rise to a new defamation claim each time a new hyperlink appears.

Similarly, in Pearson Education, Inc. v. Ishayev, a federal court in New York found that sending an email with a hyperlink to a website guilty of copyright infringement does not itself constitute copyright infringement.

“A hyperlink . . . is the digital equivalent of giving the recipient driving directions to another website on the Internet. A hyperlink does not itself contain any substantive content,” the court wrote.

Of course, a few court opinions do not equate a universal rule. But if these decisions are any indication, it seems writers can hyperlink without fear that the link will bind them to the same liability as the site to which they link.

Knowledge of falsity. If you are accused of defaming a public figure, the public figure must prove in court that you acted with “actual malice,” that is, that you knew the statement was false and printed it anyway or that you acted with “reckless disregard” for the truth.

Therefore, the argument could be made that if you make a false statement and then link to a document that contains contrary information, you could be accused of having known the statement was false, proving actual malice.

Ratner thinks this would be a hard argument to make.

“It would be a pretty extreme case where that would lead to liability,” Ratner said.

Recently a Texas court held that a statement was not defamatory even when it linked to documents directly opposing the statement.

In Rehak Creative Services v. Witt, a political candidate accused her rival of rewarding his supporters with government contracts. One of the companies listed as receiving preferential treatment sued the writer, arguing that her statements were so clearly false that even the documents she hyperlinked to disproved her statements.

The hyperlinks led to documents showing the company was awarded its first three contracts before it contributed to the campaign, that someone other than the candidate approved the contracts, and that it competed at market or below-market rates.

The Texas appellate court said, even if the linked documents “unmistakably show ‘the exact opposite’” of what the writer stated, they would serve as a signal to the reader that the writer’s statements were merely exaggerations or “politically flavored hyperbole.”

Without the hyperlinks, her statements might have been actionable. But with the hyperlinks, readers could compare the writer’s statements against the documents and see that her statements must be speculation.

Generally, “linking is more likely to be helpful than hurtful,” Ratner said.

Link rot. One final limitation to hyperlinking is the potential for “link rot,” or broken links. This happens when the content you link to has been removed or assigned a different URL. If you rely on the information in hyperlinks to save you from a defamation claim, and readers cannot access that information, then the hyperlinks likely will not help.

Therefore, it is probably best to include whatever information you can in the body of your article. For example, cite directly to a public document to be protected by the fair report privilege, and disclose the facts supporting a potentially damaging statement, so that you can defend it as opinion in court, if it comes to that.

But if there is one thing all of these cases have shown: it doesn’t hurt to hyperlink.