Can simply linking to a defamatory article online lead to liability?

Nowadays it is quite easy to hyperlink to other web content from your own website. However, do you need to worry about the truth of everything you link to in order to avoid liability for defamation based on the linked article’s content? In re Philadelphia Newspapers v. Vahan H. Gureghian, 690 F.3d 161 (3rd Cir. 2012), the famed Philadelphia Inquirer wrote an article about the Plaintiff that included links to a particular website. In fact, the linked website contained material Plaintiff alleged to be defamatory. Plaintiff then sued the Philadelphia Inquirer for defamation because it provided the link within its Internet column even though the allegedly defamatory material was not authored by them and had even been published a year earlier. In order to avoid a statute of limitations problem because there is a one-year statute of limitations for defamation claims, Plaintiff argued that the links amounted to republication of a defamatory statement.

In its analysis, the Court discussed two legal doctrines: (1) the single publication rule, and (2) doctrine of republication. The “single publication rule” enables only the original publication of the defamatory material to trigger the statute of limitations. This makes sense, of course, since the statute of limitations would be meaningless because it could potentially never end if it started over every time one re-circulated the defamatory material. Courts addressing the Internet-based defamation have found this rule applicable to information widely available on the Internet (rather than just to written publications).

An exception to the single publication rule is the doctrine of republication. Republishing material (like a second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material resets the statute of limitations. While traditional principles of republication require the retransmission of the allegedly defamatory material itself for the doctrine to apply, courts addressing the doctrine in the context of Internet publications generally distinguish between linking, adding unrelated content, or making technical changes to an already published website (which they hold is not republication), and adding substantive material related to the allegedly defamatory material to an already published website (which they hold is republication). For the courts that have considered whether linking to previously published material constitutes republication, they all hold that it is not based on a determination that a link is akin to the release of an additional copy of the same edition of a publication because it does not alter the substance of the original publication.

Ultimately, the court in Philadelphia Newspapers agreed with a prior case, Salyer v. Southern Poverty Law Center Inc., which held under very similar facts that a link is not a republication. 701 F. Supp. 2d 912 (W.D. Ky. 2009). In Salyer, the defendant provided links to defamatory material and referenced that same material several times in articles posted on its website. There, the court explained that although a link calls attention to defamatory material, it does not present it. Rather, a link is only a means for accessing the referenced article, rather than a republication.

Even though courts have found that links do not amount to republication, it is still advisable to try to avoid linking to any defamatory material (and is also the right thing to do) as the case law further develops in this area.

Source: In re Philadelphia Newspapers, LLC et al., 690 F.3d 161 (3rd Cir. 2012)

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