Hyperlinking within an Online Article could Immunize the Speaker against a Defamation Claim

by Holland & Knight LLP
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For even the most novice internet user, hyperlinks are undoubtedly helpful to the browsing experience. Hyperlinks assist users in navigating through the vast amounts of undesirable content on the web by providing a reference to potentially desired content. Additionally, they provide context and sourcing for any factual claims (such as the ones made in this blog), and a way for users to refer to content too large or lengthy for a particular format, e.g., linking to an article on Twitter that cannot fit in the 140 character limit.

And now, according to the Southern District of New York, hyperlinks can be cited as a way to avoid liability for defamation. In Adelson v. Harris, No. 12 Civ. 6052(JPO), 2013 WL 5420973 (S.D.N.Y. Sept. 30, 2013), the court dealt with a defamation lawsuit arising from an article posted during the heat of the 2012 Presidential Election. The plaintiff Sheldon Adelson is a wealthy casino owner who runs the Las Vegas Sands Corp. ("LVSC"). Adelson is also a well-known financial supporter of Republican candidates, including the 2012 GOP nominee for president Mitt Romney.

The instant case arose as a result of allegations proffered in a separate wrongful termination suit filed in 2010 by a fired former LVSC chief executive. In a declaration filed subsequent to the suit in July 2012, the former executive alleged that Adelson had personally approved of the decision to allow prostitution in the properties owned by LVSC in Macau. A week later, the National Jewish Democratic Council ("NJDC"), an organization whose mission is to increase Jewish support for Democratic candidates, posted an article on its website alleging Adelson "personally approved" of prostitution in his Macau casinos. The phrase "personally approved" in the NJDC article was hyperlinked to another article by the Associated Press ("AP") detailing the allegations against Adelson. Shortly after the publication of the article, the NJDC was informed by Adelson's attorney that the allegations vis a vis prostitution were lies and contained knowing falsehoods. In response, the NJDC published a press release standing by their reporting. Thereafter, in early August 2012, Adelson filed suit against the NJDC and its President and CEO, David Harris alleging defamation.

After resolving a choice-of-law dispute between Nevada and D.C. in favor of the former, the court applied the following defamation standard: "A statement is defamatory when, under any reasonable definition, such charges would tend to lower the subject in the estimation of the community and to excite derogatory opinions against him and to hold him up to contempt." However, allegations of defamation are subject to any applicable affirmative defense or privilege. In Adelson, the defendants cited the "fair report privilege," which immunizes anyone from liability absolutely who makes a republication of a story from material that is available to the general public. In order to claim the privilege, one must show (1) that the attribution to the original publication in the republication is apparent; and (2) the republication must constitute a "fair and accurate" description of the original publication.

The attribution requirement is where the hyperlink to the AP article in the NJDC piece becomes relevant. The plaintiff claimed that the hyperlink in the NJDC article was insufficient attribution to qualify for the fair report privilege. The court disagreed. It noted first that the hyperlink "is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source." Second, in response to Plaintiff's attempt to distinguish a footnote from a hyperlink on the grounds that only the former is contained within the "four corners of the document" and therefore not an actual attribution, the court stated that this distinction is immaterial since each requires external navigation, and the "verification of a hyperlink is far from onerous." Accordingly, because the defendants also satisfied the second prong of the privilege since the NJDC article was a fair and accurate description of the AP article, the court held that the statements claiming Adelson "personally approved" of prostitution are non-actionable as a matter of law.

There are many ways to avoid defamation online. Don't knowingly lie. Couch negative statements in a tone of opinion. Is there now another way? Perhaps in light of the Adelson decision, and its recognition of the hyperlink as method of attribution under the fair report privilege, linking to a reputable source who agrees with your opinion may be effective as well.

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