Why hyperlinks are attacked

Update: This blog post has been updated to reflect the April 15, 2021 decision of the United States Court of Appeals for the Fourth Circuit in Lokhova vs. Halper.

Hyperlinks are an essential part of online journalism. Whether highlighting previous coverage or showing a reporter’s sources, they can help readers tap into the nearly limitless information capacity of the Internet.

But those perks haven’t stopped people from suing journalists and news outlets for defamation – long after the statute of limitations has expired – simply because an allegedly defamatory article was hyperlinked and therefore, they claim, republished. at a later date.

It’s an approach that hasn’t stood up to scrutiny in courts across the country. Yet, though rarely successful, such lawsuits can have a chilling effect on online journalism, discouraging news outlets from using hyperlinks to avoid liability.

The Committee of Journalists recently urged state and federal courts to dismiss plaintiffs’ claims that hyperlinks extend the statute of limitations for filing defamation suits, arguing that such claims, if successful, pose a threat important for a crucial tool that journalists use to inform and educate the public. Public.

“Hyperlinks help online readers get valuable context for today’s headlines,” said Emily Brown, legal officer for the Committee of Reporters. “Hyperlink-based defamation suits attempt to stretch the repost rule to an absurd extent — and end up undermining online journalists’ ability to tell the full story.”

Reposting in the age of the internet

In the 19th century, long before the internet began, English common law held that an allegedly defamatory remark could give rise to a separate cause of action for each new audience it reached. This meant that each time a book or journal changed hands, it was considered republished – and the statute of limitations clock was reset. In a 172-year-old judgment that continues to making waves in the UKfor example, the Duke of Brunswick successfully sued for libel based on a 17-year-old issue of a newspaper which he claimed was defamatory.

Things changed in the United States after the courts recognized the chilling effect this multiple publication rule had on the press. And with the advent of mass printing, such a rule would have the potential to push the number of libel suits for a single edition well into the millions. The English precedent, wrote the California Supreme Court in 2003“threatened a volume of litigation and the potential for an indefinite toll of the statute of limitations which, as these courts understood, would challenge the ability and willingness of publishers to report freely on news and issues of public interest”.

The courts adopted the “single publication” rule that we have today, which governs defamation suits both in print and online. Under this rule, defamatory content gives rise to a single cause of action when first published – and any subsequent distribution of the same content does not create a new cause of action or extend the statute of limitations, which , in most jurisdictions, is one year. (Republishing can occur when a speaker substantially alters a previously published article or intentionally publishes it to a new audience.)

Despite these rules regarding what constitutes republication, defamation claims continue to be filed after the statute of limitations expires, although such late claims are rarely successful. Hyperlinks are the latest way for plaintiffs to undermine the single post rule – and lawyers for the Committee of Journalists are fighting for the courts to keep it intact.

“As long as these statute-barred defamation lawsuits continue to be filed across the country,” Brown said, “we will continue to fight them.”

Involvement of the Committee of Rapporteurs

Two years after blogger Julie Globus published a series of articles about real estate titans Louis and Joel Kestenbaum, father and son, and their business, sued the writer for defamation in 2018.

The lawsuit came more than a year after New York’s statute of limitations for the original articles expired. But he alleged that Globus republished his work when an auto-generated hyperlink for one of the previous stories appeared in a sidebar of a webpage for an unrelated article from 2017. Since this article appeared within the statute of limitations, a libel suit could proceed, the Kestenbaums argued.

In an amicus curiae brief filed earlier this year, lawyers for the Reporters’ Committee argued that the hyperlink was not a repost – and that such a rule would “deprive internet users and publishers of an essential tool for understanding information online”.

“A decision that adopts plaintiffs’ republication theory would curb the use of hyperlinks, reduce the free flow of information online, and undermine the Internet’s potential for the dissemination of knowledge,” they wrote.

Lawyers for the Committee of Reporters have made similar arguments in briefs filed in other state and federal courts over the past two years. In Delaware, lawyers for the Committee of Reporters submitted briefs from friends of the court in two different courts to support Vox Media after a tech entrepreneur sued the news organization over allegedly defamatory articles that were hyperlinked in a later story. In March, the Delaware Supreme Court upheld a lower court ruling in favor of Vox, finding that the plaintiff’s claims were statute-barred and that the linked article did not republish the original stories.

In another case, the Committee of Reporters submitted an amicus curiae brief in support of several news outlets that were sued for stories they published about a graduate student’s dinner party. Russian origin with General Michael Flynn, then Director of Defense Intelligence. Agency. While a district court dismissed claims arising from the allegedly defamatory articles because they were filed after the one-year statute of limitations expired, the student appealed to the States Court of Appeals United for the Fourth Circuit, arguing that the links and social media posts essentially reposted previous stories, extending the filing deadline it had previously missed.

The Journalists Committee’s amicus brief challenged the complainant’s republication theory and pointed to the negative impact a ruling in her favor would have on the ability of the news media to do their job.

“Fundamentally,” the lawyers for the Committee of Journalists wrote, “the Internet is a richer information environment, especially for journalism, when articles include hyperlinks.”

On April 15, 2021, the Fourth Circuit upheld the District Court’s denial of Lokhova’s claims, rejecting the argument that the hyperlink (or third-party tweets) Lokhova pointed to amounted to a repost.

The Committee of Rapporteurs regularly submits memoirs of friends of the court and his lawyers representing journalists and media outlets voluntarily in court cases that involve First Amendment freedoms, newsgathering rights of journalists, and access to public information. Stay informed of our work by subscription to our monthly newsletter and Follow us on twitter Where instagram.

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