Bankruptcy court finds links in e-mail defamatory

Ellen Biltz | Content Regulation | Feature | June 3, 2010

A federal bankruptcy court in Texas became one of the first to find that individuals can be held liable for linking to defamatory blog posts earlier this year.

The court in In re Perry held that an individual's e-mail opened him up to a defamation claim even though he did not author any of the inflammatory postings himself.

Though the case revolved mostly around the bankruptcy proceedings of William Perry, the U.S. Bankruptcy Court for the Southern District of Texas relied on state defamation laws when it found that e-mail the defendant sent, which linked to websites with blatant falsities about the business practices of David Wallace, the mayor of a Texas town, were enough to establish the "actual malice" standard that is necessary for a public official to bring a defamation claim. The court further said that sending an e-mail message with the links was enough to establish that the information had been published.

Houston media lawyer Robert Latham said he’d never heard of another case in Texas, or anywhere for that matter, that said sending an e-mail that linked to blog post links is be considered a publication for purposes of a defamation claim.

“That’s sort of akin to someone saying, ‘Go and pick up this book’, and then that being republication,” he said. “That’s odd.”

In Perry's case, he was found to have made several oral comments about how the blog postings might affect Wallace’s political career. But, according to the case, he did not write the blog himself or include extra comments in his e-mail messages, aside from the links.

Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation said while he’s never heard of another court finding that e-mail links are considered publication for defamation purposes, an assertion by the sender that the details included through the link are true could have weight on a court’s finding.

“That’s a different situation,” he said.

In Perry’s case, the judge did state that the culmination of the e-mail messages Perry sent, along with other comments he made in regard to the plaintiff helped to show malice. However, the publication element of the defamation claim was based purely on the linked blogs.

The court said, “[W]hen Perry published the Blog, he acted with actual malice or, alternatively, with reckless disregard of the truth. Therefore, this Court concludes that Perry committed defamation in publishing the Blog to certain individuals.”

Laura Prather, an Austin, Texas-based attorney who deals frequently with defamation cases, said she hasn't seen a court come to the same conclusion as In re Perry but thinks cases arising from the republication of information online is an overall trend.

Though Prather said she would expect future cases to rely on a more traditional interpretation of defamation law, she could understand why the judge would find the act of sending an e-mail denoted the sender believe in its truth. “People will have a hard time avoiding responsibility for that,” she said.

Zimmerman said the In re Perry case may have been decided differently if the individual had cited an immunity section under the Communications Decency Act, which provides that providers of interactive computer services should not be treated as publishers for purposes of defamation. But because the statute was not raised in the case, it’s unclear how it would have been applied. He also cited an appeals court decision in California in the case of Barrett v. Rosenthal where the court found that the defendant was not liable for the forwarding of e-mail messages because she was not the original author.

Until more courts deal with the issues raised by online defamation claims, however, it is unclear how the disagreements will play out in court.