Lokhova v. Halper

Amicus brief filed by the Reporters Committee for Freedom of the Press and 29 media organizations

Court: U.S. Court of Appeals for the Fourth Circuit

Date Filed: July 31, 2020

Update: On April 15, 2021, the U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s dismissal of Svetlana Lokhova’s claims, rejecting the argument that the hyperlinking (or the third-party tweets) pointed to by Lokhova amounted to republication.

Background: Svetlana Lokhova, a Russian-born graduate student, filed a defamation lawsuit against The Wall Street Journal, The New York Times, The Washington Post, and NBCUniversal, as well as an informant who helped the FBI investigate Russia’s interference in the 2016 presidential election.

Lokhova says the news organizations defamed her when they reported on a 2014 dinner at the University of Cambridge, at which General Michael Flynn, who was the director of the Defense Intelligence Agency at the time, met Lokhova but failed to notify officials of that interaction.

Lokhova claims that Stefan Halper, an American foreign policy scholar and senior fellow at the University of Cambridge, worked with U.S. intelligence and law enforcement agencies to orchestrate the news organizations’ coverage of her encounter with Flynn.

The U.S. District Court for the Eastern District of Virginia dismissed most of Lokhova’s defamation claims because they were filed after the one-year statute of limitations had expired.

Lokhova appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that several of her defamation claims are within the statute of limitations because the original publishers and third parties hyperlinked to or retweeted the allegedly defamatory articles within the statute of limitations period. In other words, she claims that the links and retweets essentially republished the earlier stories, extending the filing deadline she previously missed.

Our Position: The Fourth Circuit should reject Lokhova’s republication theory and affirm the district court’s dismissal of the majority of her claims as time-barred.

• Lokhova’s claims stemming from hyperlinked articles are barred by the statute of limitations.
• Lokhova’s argument that the republication rule applies to hyperlinks would deter hyperlinking and deprive internet users of the ability to understand content online.

Quote: “Lokhova’s argument would, if accepted by this Court, discourage the essential practice of hyperlinking and thus negatively impact the ability of the news media to keep the public informed.”

Related: In 2019, the Reporters Committee and a coalition of 23 media organizations urged a Delaware court to reject a defamation claim against Vox, arguing that hyperlinking constitutes republication. The media coalition argued that a ruling in favor of the republication theory would threaten the use of hyperlinks, which have become a valuable tool in online journalism. In June 2020, the court granted Vox’s motion for summary judgment, holding that claims based on articles published in 2012 were time-barred and that a 2014 article did not republish the 2012 articles, as the Reporters Committee argued in its brief.