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Should Linking Equal Publishing When It Comes To Defamatory Content?

Should the wording and context of the link matter?

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Should Linking Equal Publishing When It Comes To Defamatory Content?
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Let’s imagine this situation:

A website, let’s call it TheScoop.org, publishes an article that, among other things, says that a high profile businessman named John Robertson is involved in an illegal drug ring. The article contains little to no actual evidence for this claim and relies on “some guy” as their source for the information. I’m sure we can all agree that the high profile businessman would at least have a case for defamation.

What if the following week, another website called HotBuzz.com writes an article that refers to the article published on TheScoop.org via hyperlink inside the text. Would HotBuzz.com also be guilty of defamation?

According to the Canadian Supreme Court, probably not.

Should sites have the ability to link to possibly defamatory content without fear of retribution? How about the right to quote from it and print the exact same defamatory content? Let us know in the comments.

The Court has just ruled that unless the hyperlink “presents content from the hyperlinked material in a way that actually repeats the defamatory content,” a hyperlink does not equal publication. In effect, as long as you refrain from restating the defamatory content on your own site, feel free to link away.

This decision comes from a case, Crookes v. Newton, that basically runs parallel to the fictional scenario I described above. The defendant, Newton, published an article about a defamation dispute between local businessman Crookes and a former associate. Newton linked to the supposed defamatory content written by the former associate, and Crookes sued Newton when he refused to take down the links.

Crookes’ argument was that the hyperlinks created by Newton connected to the defamatory content, and by publishing the links, he was in turn publishing the defamatory content himself.

The majority of the panelists of the Court held that hyperlinks are basically analogous to footnotes. Even though hyperlinks make the referenced information more easily accessed than a traditional footnote can, it is the same concept.

Here’s what they had to say about the fact that hyperlinks do not equal publication –

Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

According to the court, the traditional burden of proof in a defamation case simply involves showing how a defendant conveyed defamatory information to a third party. Usually, the manner in which the defendant conveys the defamatory content to a third party is irrelevant. If this traditional understanding is applied to the Newton v. Crookes case, then Newton is screwed. He undoubtedly became a delivery mechanism to a third party when he hyperlinked to the content.

The majority of the Court explained how this traditional understanding can’t be applied to hyperlinks –

Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

Chalk one up to internet freedom. It appears that the Canadian Supreme Court understands the devastating effect “hyperlink liability” would have on the internet.

But let’s take a closer look at the last part of the majority decision – Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

Another Court panelist expounded on that scenario –

However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.

Does this leave the door open for a lot of blurred lines and subjective judgment?

Going back to our fictional scenario, we can imagine that the following link would be alright in the eyes of the Court:

…here’s TheScoop.org’s take on Robertson, if you are interested.

And we can surmise that this would be a no-no:

…and since John Robertson is a big time drug dealer, his opinions would be biased.

But what if we change it slightly, to this:

…here’s TheScoop.org’s awesome indictment of Robertson, for your reading pleasure.

Would that constitute “adoption and endorsement” of the linked content?

The Court specifically says that regurgitating the possibly defamatory content, even after sourcing it with a hyperlink, would constitute defamation. So this wouldn’t fly, according to this Canadian Court’s ruling:

I’m sure you all remember what TheScoop.org said about John Robertson, that he’s the leader of an underground drug ring and everything.

The big question out of all of this is what do you think constitutes publication when it comes to defamation online?

I have a feeling that most of us will agree that linking to an article without republishing any of the defamatory content does not equal defamation. But if an article links to defamatory content and reprints the same content, should that then be considered defamation?

In the U.S., hyperlinking is not considered publication. Do you think that citing an article should ever be considered publication of the content? Let us know what you think in the comments.

[Image Courtesy m.photography (Flickr), Hat Tip to Ars Technica.]

Should Linking Equal Publishing When It Comes To Defamatory Content?
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  • http://www.FreeGunInfo.com Steven

    I think it’s a stretch to call it defamatory if you are simply reporting what somebody else said or claimed. As long as that’s all it is. I mean of the news reported some guy called somebody a liar does not mean the news is agreeing with that statement.

  • http://www.iblogzone.com DiTesco

    Hmmm, this is an interesting topic as it appears a bit contradictory to a certain extent. What we have learned from a layman point of view is that linking or in this case hyperlinking is a form of “endorsement”. Maybe the courts should see if the link was “nofollowed”:) Quite frankly, I think that it is really difficult to assess the real intention of “Newton” in this case. He might not even “published” the content in itself but there could be a “malicious” intent for doing so. Oh well, go figure.

  • Lloyd Sexton

    intent is everything in this case

  • Greg Duncan

    If a book is found to have been defamatory, the bookseller (ie the person who provided access to the information) is not party to the defamation – the publisher may be but not the bookseller.

    The same with a hyperlink – which is merely a pointer to a place where the information can be obtained. So long as the hyperlink does not paraphrase or otherwise precis the defamatory information then the hyperlink itself has not emparted any repeatable information which the reader could then use without having gone to and read the hyperlinked text.

  • http://inoutside.biz Imelda O. Suzara

    To spread or publish speculation on someone’s reputation without investigating directly is irresponsible. How true is the story? How credible are the characters involved? With the internet, anyone can publish anything and some readers may or may not believe what is written because a lot of amateur writing may be irresponsible. A credible journalist probably does direct interview/investigation of the people involved before publishing anything, may even work with the police, lawyer, Crown Attorney in a crime, until a Court decision is made to end speculation. Any business involves the public and unlike the personal life which can be private and under one’s control, some people will write about the professional side to inform or misinform the public. The effect, of a lie or truth about a crime, on one’s job or business reputation can even end the job or business, which is possibly the intent of the writer, to ruin any public profit of the accused. Some people resign after such embarrassment, especially if it is true. Those who remain after all the speculation, probably do so if the story was false and/or lacking evidence and credible testimony.

  • Thomas

    The court case clearly expresses that one can link to an article or to information without having to do extensive research and source checking out of fear from being responsible for the linked content. You cannot be held responsible for the content you link to merely by linking. I think that is a fair and reasonable approach as it would seriously hinder free flow of information if everybody would have to re-do the job of the journalist they refer to.

    However, ‘adoption and endorsement’ has nothing to do with if you think the ‘TheScoop.org’ is awesome or that it is cool or admirable that they say something about ‘John Robertson’. It refers to that you promote the same concept or message as the content you link to.

    If you write that ‘John Robertson is outed as a major drug lord by TheScoop.org’ regardless of what the actual link text is saying, then you are promoting a news story, without taking a position on whether it is right or wrong. However, if ‘John Roberson’ contacts you and informs you that ‘TheScoop.org’ is being sued for character assassination because they are publishing an erroneous story, then you should not be punished for linking to the story. However, if you are an honest person with integrity, then I think you have a moral obligation to make sure that your own writing reflects facts. Since you have been notified that the information you link to have been challenged, then you would be an honest journalist/writer/publisher if you also made sure that your mention of the story is changed to reflect that it is being disputed and that legal action has been taken against ‘TheScoop.org’.

    Without looking at law, but from a position to protect the free flow of (truthful) information, the essence of the news story is no longer that ‘John Robertson is a drug dealer’ but that ‘John Roberson is challenging that he is being labeled as a drug dealer by TheScoop.org’.

    If you publish any kind of story and it comes to your knowledge that one of more of your sources may be unreliable or lying, then you are a crappy journalist if you still maintain that your story is truthful and fact-checked. Anybody can make a mistake, but if you insist that you mistake is not a mistake, then you have no credibility. Therefore, it is in your own interest to take responsibility for what you publish, no matter if it is your own story or a reference to some other journalist/writer – no matter if it is breaking the law or not.

    I think the important thing in the court ruling, as I understand it, is that you have to take responsibility for what you are publishing and that you cannot be excused for saying something you know is untrue or defamatory just because you heard it somewhere else.

  • http://www.rudraayurveda.com/ Roy

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  • David Spivak

    What about sites that offer reviews? I recently came across a review of one of my client’s products on Amazon that said ” I find it interesting that all of the great reviews have a similiar theme and style which makes me skeptical as to who is really behind them.” This comment craftily casts doubt on my client’s integrity without placing direct blame on my client for “stuffing the ballot box” with good reviews. I am sure there are plenty of reviews out there that directly defame a company’s integrity. Should Amazon (as an example) be liable for allowing FALSE statements to be published that defame a company and left up on their site?

    • http://www.alda-architects.co.uk Alan

      I am constantly amazed at what is written on many ‘review sites’. Firstly they are open to abuse,for and against, so you have to doubt the validity and value of what you are reading. In the end is there any real point in much of this junk? (clicking like buttons and all the rest of the nonsense.)

      Many reviews that I have read bear no relationship with experience’s that I have had with particular businesses so I have to ask what mind set produces such reviews?

      When we write a review for a small business we generally do not know what difficulties the person running the business has, what business, health and family problems. I would strongly urge everyone to only write good reviews when you get good service and damn the rest by silence (unless it is a large organisation). You really do not know what effect your review may have on someone who is on the edge.

  • http://www.alda-architects.co.uk Alan

    Good article.

    I am amazed by what many publish and link to. There is a saying, “less said, less regretted.* Unless you know something to be fact never present it as so. Opinion is a different matter, but still you have to tread carefully.

  • http://www.mandarinconsulting.com reflux

    But i believe this also depends a lot on the place from where the defamation is filed as courts of different countries would view these things differently, IMO, when someone gives a false information and someone else hyperlinks to that, the second website is actually sending readers who trust them to read that and believe it, so yes, it amounts to aiding defamation, may not be directly defaming. Aiding a criminal activity is more or less crime.

  • http://www.medlawplus.com medlaw

    I think you pointed out how nuanced this issue is in the above examples although perhaps the article did not spell it out. Words describing the link (including the anchor text) come into play in determining whether a communication has been made. The link on its own might not constitute a publication but words on the referring website that describe the link may rise to that level give rise to liability for libel. If a linked page contains something controversial, I think bloggers need to be careful to type: “xyz.com says (controversial stuff), [link]” as opposed to “(controversial stuff), [link]“.

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  • Kelly

    Just imagine if someone could be held accountable for hyperlinking to a site. That would mean that if you linked to a page on my site that is about something you agree with, or you feel would have value to your clients, then the very next day I change that page and write some nasty things about someone, that you are now going to be held accountable. This would become as bad as hackers hacking your site. You would have to know that everything you have ever linked to was never going to be changed. Any hacker like person out there could easily write something defamatory about themselves after you have linked to that page then turn around and sue you. I think the court’s ruling was positive.

  • http://www.lendorlaw.com/ Lendor Law

    This brings to mind a pending case regarding information posted on Facebook. Defferent jurisdictions so it will be interesting to see how this pans out.

  • Kate Lennon

    This ruling is clearly inadequate as it does not take either context or intent into account. It opens the door to all kinds f abuse. For example, if one wanted to destroy a certain person’s reputation (and possibly their livelihood etc.), and one would have to do is write a blog about, say, pedophilia or terrorism, mentioning the individual in question, and posting a link to some anonymous site (created for the purpose), accusing him or her directly of involvement in these activities. THe link in and of itself may be “neutral”, but the intent behind posting it, in this instance, would be malicious and damaging.

    • Kate Lennon

      Excuse pre-coffee typos. Shjould have been “ALL one would have to do”.

      Incidentally – and I remembered this after I posted above – a friend of mine (male) was subjected to a hate campaign on facebook earlier this year. Some guy (my friend did not know him, but he was a fb friend of my friend’s fb friends) posted comments to the effect that my friend had raped or sexually assaulted a girl (the allegation was ambiguously worded). My friend replied, basically saying, “WHat the hell are you talking about?” (he knew neither the poster of the message or the girl mentioned, ands assumed that the person making the accusation had confused him with somebody else). But by then, of course, all my friend’s fb friends – which included members of his family and work colleagues – had read the allegation. And, human nature being what it is,, some of them probably figured that there might be some truth in them (“there’s no smoke without fire, right? Except sometimes there is.)
      Anyway, that wasn’t the end of it. The other person continued to post message making the same vague accusation, and hinting that he “knew things” about my friend. This went on for several months, and, even though my friend blocked him, he was still able to post comments in reply to messages posted by my friend’s fb friends. In fact he is still posting occasional messages making the same allegations. My friend has contacted fb and reported this individual, and even consulted a lawyer, to no avail. It seems that, as things stand, anyone can accuse another person of just about anything online, and get away with it. That can’t be right. My friend has told me that, since these allegations appeared on facebook, various people with whom he was previously on friendly terms have given him the “cold shoulder”.

  • http://www.isabelsmith.com/ Isabel Smith

    I was amazed to read in the new testament of the bible that we are to mind our own business and leave the rest up to God. For me, I interpret that to mean that if it is something that is not to my benefit, don’t get involved. Linking to a plumbing website would do me no good, since my business is graphic and web design, illustration and calligrapy. But if I created that website for the plumber, it would show off my work and then be good. “Minding my own business” lets me make decisions about what is good for me, while leaving the rest up to God, let’s me off the hook of being in the position of having to judge anyone. The internet opens up a whole new set of parameters of how people think, act and do things — but it doesn’t change basic values. Basic values are survival, family, and creating some kind of enjoyment or entertainment, or as our Declaration of Independence say, ”the pursuit of happiness” — slander, for me, doesn’t fall under the happiness column. I just think all that negative stuff would die out… Feed the good wolf and the evil wolf will die.

    • http://www.snackhealthysnacks.com/prod.html Hal Fassett

      I agree with Isable 100%. I never used to agree 100% with what she says, but I think I’m there now. Anyway, very well put Isabel.

  • http://www.CaptainCyberzone.com CaptainCyberzone

    You mean like the Main Stream Media: “anonymous sources say” or “most scientists agree”, blah, blah … blah?
    If someone publishes an eroneous, slanderous, deflamatory un-fact checked story then that person should be sued and punished to the full extent of the law. If someone else uses/links to that published piece then that person is responsible for gross negligence for not doing “due diligence” and should be held responsible for “abetting” (to the full extent of the law).
    The laws, on an international scale, concerning this need to be addressed and posted to every internet user. In short, YOU are responsible for your actions.

  • http://www.CaptainCyberzone.com CaptainCyberzone

    P.S. Unless the “linked” is being used as an example of such and is duly noted.

  • http://www.phoenixleisure.co.uk Muggsy

    I think it’s a veritable minefield!

  • Taylor

    Check out this story, detailing how the staff of webpronews.com kidnapped and molested cambodian boys for 6 months in 2010

  • http://www.westnet.net.au/~gordon451/ Gordon Edwards

    I suppose it depends where you live, where your site is viewed, and where the allegedly defamed person figures the damage will affect (him).

    In Germany, for example, it is necessary to ensure the site you link to does not in any way contain (defamatory) material. Most of Europe goes down this path.

    Importantly, bloggers and web-weavers should read and understand this WebProNews article from 27 July 2006.

    In essence, regardless of the Canadian decision, you better make sure you know what the link points to. It wouldn’t be the first time a linked target has been “edited” after you wrote your piece!

    And don’t forget, you can be taken to the cleaners in countries you never even heard of.

    Gordon.

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  • JB

    The whole point with a defamation suit is that not only is the information inaccurate, but it has a negative effect on the victim. Literally “de-fame”, take away the reputation. Now a link or even a quotation from a source that defames is not of itself defaming, but it adds to the evidence that defamation has occurred because others are repeating the lies about the victim. The only time a linker or a quoter of the source of defamation would be sued if they continue to defame after the court has determined the source is lying. Even then they not likely to be sued if they offer some kind of disclaimer like “Source X claimed…but was successfully sued…”

  • http://www.electric-reviews.org Mark Demers

    I think the people that made this rule are right on. Just because someone links to a defamatory story they should not be sued but a lot depends on the wording. Just say something like read about the problems these two are having or read about so and so or read what this guy says you should be safe. Personally I avoid it all. Gossip is not for me.

  • http://www.seonorthamerica.com Tom Aikins

    The court seems to have gotten it right with this decision. It’s reasonable and well balanced.

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  • http://mobilenewstuff.com Mobile New Stuff

    The same with a hyperlink – which is merely a pointer to a place where the information can be obtained. So long as the hyperlink does not paraphrase or otherwise precis the defamatory information then the hyperlink itself has not emparted any repeatable information which the reader could then use without having gone to and read the hyperlinked text.

  • http://www.BornToBeMiserable.blogspot.com Kimberly

    My response

    What is defamation by Kimberly Koerber-Bauer-Koerber

    I think that defamatory content has to do with the interpretation of same, as every other thinking person would say. Lawyers, and others who are supposed to be protective of clients are the ones to take a look at, not badgered writers. In case you are not aware of this, writers have 5th amendment protection. Writers are also supposed to be ethical. You sound like you were a victim of some kind of defamation and are looking for a legal loophole. In my life, criminals did this, because of burglary, theft, and fraud issues. They called themselves “Sex With Slaves” and went around and sexually imposed themselves on white women who were at home alone, and then blamed the women. Another version of this is called “Nigger Alley” from the southern states and the American textile industry. Blacks felt that they were slaves, and the point was to use this tactic to abuse whites who were causing their troubles, or so they thought as part of ‘Emancipation’. Unfortunately, this is still called ‘rape’ regardless of crooks trying to claim that it is defamation. “I” became a victim of defamation first, via the police/intelligence network, and then crooks wanted me to be removed. The same type of situation is going on in other cities – one of which being Boston Massachusetts, as picked up by The Boston Globe. I put the article on my blog spot the same day that “The Columbus Marathon” people were here, to develop a similar race as the Boston Marathon is to that city.

    We in the United States are also experiencing the sell-out of our US Intelligence system, including programs like this. So, in your case, as a complainant, were you something like this, or obeying the law, and yet a victim of crime?

    “Something to think about….”

    Cheers,

    Kimberly! :)

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