Another Court Logically Concludes That Linking To Allegedly Defamatory Content Isn't Defamation

from the common-sense-and-logic-prevail-THIS-TIME dept

Many members of the public believe the internet is subject to a completely different set of laws when it comes to defamation. Fortunately, sanity (mostly) continues to reign when courts apply REAL laws to newfangled message delivery systems. There are exceptions, of course. An Australian court recently declared Google to be the “publisher” of defamatory content posted by other people at other websites, but returned in search results. A Canadian court found a blogger personally liable for republishing defamatory statements made by others.

Fortunately, very few courts have found simply linking to defamatory content to be an act of defamation. In fact, the exception to the rule was, of all things, a bankruptcy court, which decided sending someone an email with links to defamatory content could be considered defamation.

Eric Goldman has the details on yet another case to add to the “linking ≠ defamation” body of caselaw.

Another court has ruled that linking to defamatory content isn’t a defamatory republication of the content. I just blogged on a similar result in Life Designs Ranch, Inc. v. Sommer. The only twist here is that the person posted the link to Facebook and then “liked” their own post. Putting aside the social faux pas of liking your own post, the “liking” does not affect the defamation analysis.

That’s the crux of the lawsuit, as far as it pertains to social media platforms and their encouragement of “sharing” possibly defamatory content. (And, I guess, baby pictures and Minion-featuring quasi-memes…) The defendant’s self-fist-bump of “liking” her own status update didn’t suddenly turn the posted material from “just a thing I’m throwing out there” to “defamatory content I heartily endorse.”

There appears to have been several issues with the defamation claims made by the plaintiffs, including naming additional defendants after the statute of limitations had expired and a failed argument that one of the plaintiffs was a “private citizen,” despite the allegedly defamatory material clearly discussing his former position as an elected official.

[I]n view of his unquestionably public role in the relevant community of Emmaus, Slozer must also be deemed a public figure for purposes of a defamation analysis in the circumstance at issue in this case. This conclusion is further compelled by the fact that the statements at issue here are directly connected to, and concerned with, criticisms of Slozer’s record in his elected position in Emmaus municipal government. Although it cannot be said that one categorically renounces a private life in all respects upon taking public office, it is but a truism to acknowledge that public actions by a public servant remain of legitimate public concern even after an official leaves office. And where such an official continues to participate vocally in public affairs, he may not so easily dissociate himself from his role as a “public figure.” On the present facts, there is, therefore, no question that in the relevant community of Emmaus, Plaintiff Slozer maintained the status of public figure during the 2011 campaign season for the purposes of defamation law.

And, while the court did find that the linking (and “liking”) was not defamatory, it also found the original content to be merely statements of opinion, rather than libelous.

Although hardly a lofty exposition of the issues evidently at the forefront of the campaign — much less a shining example of political pamphleteering worthy of the heritage bestowed by Paine and his erudite cohort of Founding Fathers — the statements about Donches and Slozer are nevertheless not capable of defamatory meaning as a matter of law. Properly viewed in the context in which they appear, the references to Donches’ and Slozer’s psychological traits would fairly be received by the intended audience as nothing more than opinionated assessments of a political opponent’s character and motivation.

Finally, the linking itself:

We also conclude that Appellee Holzhafer’s posting a link to the allegedly defamatory website with a “like” designation on her Facebook page, is not a republication of the content of the website sufficient to support a separate cause of action for defamation against her.

Side note: as someone who was recently referred to as “Tim Cushings” and “Tim Lushing” by Patrick Zarrelli and the Ft. Lauderdale police officer who had the misfortune of fielding the reputation mismanagement superstar’s decidedly non-criminal “criminal complaint,” I feel for the defendant whose linking/ liking was just officially declared non-defamatory. [Truth be told, Techdirt contributor Tim “Darknight” Geithner and site founder Mike Reznick don’t exactly have it easy, either.]

This footnote appears on the first page of the opinion:

Ms. Holtzhafer noted in her motion for summary judgment that her name had been misspelled as “Holzhafer” throughout the proceedings. Because the rest of the record retains the “Holzhafer” spelling, we have done the same for the sake of consistency.

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Comments on “Another Court Logically Concludes That Linking To Allegedly Defamatory Content Isn't Defamation”

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Roger Strong (profile) says:

Linking to defamatory content may not be defamation, but even when done without malice it may be little different from defamation.

I’m think here of the many online newspaper archives. You may be accused of something horrible, but cleared in a later issue. Someone could link to the newspaper issue with the accusation (giving it enormous credibility), without any hint that the accuser later apologized to you.

This it the sort of thing that can be used as a dirty trick in political campaigns and elsewhere.

madasahatter (profile) says:

Re: Re:

Political operatives do not need the Internet to find dirt. They have been doing it for years and publishing their findings in what rag was the tabloid/Facebook of the day.

The issue for most people is incomplete online records not malicious searching. Someone arrested for a crime may have been cleared. That information may not be readily accessible to web search while the newspaper article describing the arrest is. This reflects on the competence of the searcher.

Roger Strong (profile) says:

Re: Re: Re:

As a story just posted (Sixth Circuit Appeals Court Prepares To Consider The Privacy Implications Of Mugshots) says,

> “Despite the nation’s justice system being built on the presumption of innocence, a large percentage of the population views “arrested and charged” as being no different than “found guilty.”

The problem isn’t incomplete online records. It’s that people will link to the arrest or accusation story – and ONLY to the arrest or accusation story – but not to the exoneration story from weeks or months later.

While “political operatives do not need the Internet to find dirt”, c’mon; be realistic. Mug shots, newspaper clippings and other records were always publicly available for those willing to travel and expend significant effort. But with the internet one can “find dirt” – or find non-dirt and misrepresent it – from a vastly greater number of sources than before the internet. Without leaving their chair.

Consider the Cardinal Richelieu quote: If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.

The internet gives you an encyclopedia of information about any public figure. Their own quotes. Stories and claims about them by others. Finding “something with which to hang them” is trivial. A few carefully selected links not only “prove” your accusation, but let you say “All I did is link to the story!”

I’m not saying that Tim Cushing is on the balance wrong; I’m saying that it’s a bit more complicated. We’re in the information age. Our standards for citations haven’t caught up with the technology.

That One Guy (profile) says:

Re: Re: Re: Re:

The problem isn’t incomplete online records. It’s that people will link to the arrest or accusation story – and ONLY to the arrest or accusation story – but not to the exoneration story from weeks or months later.

Which would be sleazy to be sure, but I think I’d prefer that over the alternative, that of forced speech, where if you don’t want to be on the hook for linking to potentially damaging speech, you have to post any ‘updates’ or ‘corrections’ that pop up later on.

I’d prefer someone being able to be scummy, over people having to worry about legal threats should they not post the ‘correct’ info, whether intentionally or not.

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