RCFP urges Delaware court to reject hyperlink republication argument

Update: On June 24, 2020, the Superior Court of the State of Delaware granted Vox’s motion for summary judgment. The court held that claims based on 2012 articles were time-barred and that a 2014 article did not republish the 2012 articles, as the Reporters Committee argued in its brief. After the plaintiffs appealed to the Delaware Supreme Court, the Reporters Committee filed another friend-of-the-court brief on Dec. 7, 2020, again arguing that the hyperlink in the 2014 article did not republish the 2012 articles. On March 18, 2021, the Delaware Supreme Court affirmed the lower court’s decision in favor of Vox. 

The Reporters Committee for Freedom of the Press and a coalition of 23 news organizations are urging a Delaware court to reject a defamation claim that could threaten the use of hyperlinks in news stories.

In a friend-of-the-court brief, filed on Dec. 19 by Reporters Committee attorneys and David L. Finger of Finger & Slanina LLP, the coalition urges the Delaware Superior Court to rule that linking to previously published articles online does not constitute republication.

Tech entrepreneur Stephen G. Perlman’s defamation case against Vox Media centers on three online articles published by The Verge, a publication owned by Vox that covers technology, science, and culture. The first two articles, published in 2012, reported on Perlman’s former video game streaming venture, OnLive. While the third story, published in 2014, focused on a new cellphone technology invented by Perlman, it also included a hyperlink and brief reference to one of the previous articles, which Perlman claims were defamatory.

Perlman failed to file his defamation lawsuit for the 2012 stories before the relevant one-year statute of limitations expired. But he contends that the hyperlinks and accompanying descriptions in the 2014 article essentially republished the earlier stories, extending the filing deadline he previously missed.

The media coalition argues that a ruling in favor of Perlman’s republication theory would threaten the use of hyperlinks, which have become a valuable tool in online journalism.

“A rule that creates liability for hyperlinks would deter their use, reducing the free flow of information online and undermining the internet’s potential for disseminating knowledge,” Reporters Committee attorneys argue.

Hyperlinks serve as citations for journalists and allow readers to learn more information, including background and context, about important issues in the public interest.

“Simply put,” the brief states, “the internet is a richer information environment, particularly for journalism, when stories include relevant hyperlinks.”

Since the coalition argues hyperlinks don’t republish the articles to which news organizations direct their readers, they can’t be used to restart the clock on the statute of limitations.

The case was transferred to the Delaware Superior Court after the state’s Chancery Court accepted Perlman’s argument in 2015. The Chancery Court denied Vox Media’s motion to dismiss, holding that the hyperlinks in the 2014 story had indeed republished the allegedly defamatory statements in the 2012 articles. The Superior Court is now reconsidering the case.

In its brief, the media coalition states that many courts across the country have rejected Perlman’s republication theory. The brief cites a federal district court ruling in Kentucky that held that the Southern Poverty Law Center’s “Hate Blog” did not republish an earlier article about the plaintiff, despite hyperlinking to it.

“In reaching that conclusion,” Reporters Committee attorneys argue, “the court made clear that simply directing a new audience to an old article is not enough to establish republication.”

Read the media coalition’s full brief.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.