Strictly legal: hypertext link deemed not to be defamatory

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Jack Greiner is an attorney with the law firm Graydon Head in Cincinnati and represents Enquirer Media on First Amendment and media matters.

The hyperlink is this wonderful device that allows an electronic publisher to direct readers to another site to illustrate a point. So, for example, here’s a song I listened to lately. When a reader clicks the link, that reader goes to the actual content site.

In the example above, the player will land on YouTube. This is important because the hyperlink is not copyright infringement. I did not appropriate any material. I’m just directing interested people to the site. If I had cut and pasted the video, so readers could hear the song and watch the video while still on my site, that would be a different story.

But let’s put intellectual property issues aside and think about defamation. If I provide a hyperlink to a defamatory post, have I defamed the subject of the linked article? The answer is no, according to a Washington state appeals court.

Here are the facts according to the court: Life Designs, owned by Vince and Bonnie Barranco, is a substance abuse program for young adults operating out of Cusick, Washington. Clients attend Narcotics Anonymous/Alcoholics Anonymous meetings at offsite locations three times a week as part of the program.

In 2012, Michael Sommer pledged to send his son to Life Designs. Sommer then challenged Life Designs’ billing. Sommer emailed Vince Barranco as follows:

“Please review your contract. It specifically states that all partial months are charged in full and the last month is non-refundable. I think you are in a highly indefensible position. The 26K has been bracketed to show that that was the amount we were MOST responsible for, and not least. I’m willing to get legal with this. Are you? I hope the most important thing to you is your reputation. We all know with what ease reputations can be destroyed, without even the legal system getting involved. But I’d go both ways if I had to. You’re wrong on all fronts. Please reconsider before we find it necessary to Carry on.

Seemingly unhappy with a single angry email, Sommer then set up a website – www.lifedesignsinc.com – which he continued to rant about. The website included a hyperlink to a website operated by Human Earth Animal Liberations (HEAL). The HEAL website has alleged that Life Designs is run like a cult, illegally exploits student labor and employs a staff member who worked at another camp when a young boy died.

Life Designs sued Sommer for defamation and included material from HEAL’s website in its claim. In doing so, she raised the issue of whether the hyperlink constituted a “repost” or a “reference”. The distinction is subtle, but essential.

When considering a defamation claim, the courts apply the “one-time publication” rule. This rule simply means that a statement is published once and on that date. So if the subject of a defamatory article only sees it after the statute of limitations has expired, that person is out of luck. The single publication date controls.

However, if defamatory material is “republished” in another medium, that republisher is potentially liable. The repost effectively acts as a new and separate event.

But a repost is not the same as simply referencing it. Let’s say Sports Illustrated publishes a defamatory statement. If I open the page and call a colleague to read the passage, I am simply referring to the defamatory content, not reposting it. And I’m not responsible for merely drawing attention to the material.

The Washington court held that the hyperlink, which takes a reader to the original publication, is merely a high-tech method of referencing material. This is not a repost. It’s quite similar to IP analysis when you think about it.

The outfit makes sense from a theoretical point of view. The hyperlink basically says “watch this”. The practical problem, of course, is that the hyperlink exposes the defamatory content to potentially millions of new readers. It’s a little different in practice from my Sports Illustrated example. But for now, that seems to be the law.

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