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Defamation lawsuits take aim at hyperlinks, threatening their use in online news stories

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  1. Libel and Privacy
RCFP has recently urged courts to reject plaintiffs’ arguments that hyperlinks extend the deadline to bring defamation claims.

Update: This blog post has been updated to reflect the April 15, 2021, ruling by the U.S. Court of Appeals for the Fourth Circuit in Lokhova v. Halper

Hyperlinks are an essential part of online journalism. From highlighting previous coverage to showing a reporter’s sources, they can help readers take advantage of the internet’s almost limitless capacity to inform.

But these benefits haven’t stopped people from suing journalists and news organizations for defamation — well after the statute of limitations has expired — simply because an allegedly libelous article was hyperlinked, and therefore, they argue, republished, at a later date.

It’s an approach that has failed to stand up to scrutiny in courts across the country. Still, even if they are rarely successful, such lawsuits can have a chilling effect on online journalism, discouraging news organizations from using hyperlinks to avoid liability.

The Reporters Committee has recently urged state and federal courts to reject plaintiffs’ claims that hyperlinks extend the statute of limitations to bring defamation claims, arguing that such claims, if accepted, pose a significant threat to a crucial tool journalists use to inform and educate the public.

“Hyperlinks help online readers gain valuable context for today’s top headlines,” said Reporters Committee Legal Fellow Emily Brown. “Defamation lawsuits based on hyperlinks attempt to stretch the republication rule to an absurd extent — and end up chipping away at online journalists’ ability to tell the full story.”

Republication in the internet age

In the 19th century, well before the start of the internet, 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 every time a book or newspaper changed hands, it was considered republished — and the clock of the statute of limitations reset. In a 172-year-old judgment that continues to make ripples in the United Kingdom, for example, the Duke of Brunswick successfully sued for libel based on a 17-year-old issue of a newspaper that he alleged was defamatory.

Things changed in the United States after 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 of ratcheting up the number of libel suits for a single edition well into the millions. The English precedent, wrote the Supreme Court of California in 2003, “threatened a volume of litigation and a potential for indefinite tolling of the period of limitations that, these courts realized, would challenge the ability and willingness of publishers to report freely on the news and on matters of public interest.”

Courts adopted the “single-publication” rule that we have today, which governs defamation lawsuits both in print and online. Under this rule, libelous content gives rise to a single cause of action when it is first published — and any later distribution of the same content doesn’t create a new cause of action or extend the statute of limitations, which, in most jurisdictions, is one year. (Republication can occur when a speaker substantially edits a previously published piece 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-period has passed, though such belated claims rarely succeed. Hyperlinks are the latest way that plaintiffs have attempted to chip away at the single-publication rule — and Reporters Committee attorneys are fighting to ensure that courts keep it intact.

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

Reporters Committee’s involvement

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

The lawsuit came more than a year after New York’s statute of limitations expired for the original articles. But it alleged that Globus had republished her work when an automatically generated hyperlink for one of the previous stories appeared in a sidebar of a webpage for an unrelated article from 2017. Since that article appeared within the statute of limitations, a defamation suit could continue, the Kestenbaums argued.

In a friend-of-the-court brief filed earlier this year, Reporters Committee attorneys argued that the hyperlink was not republication — and that such a rule “would deprive internet users and publishers of an essential tool for understanding information online.”

“A ruling that adopts Plaintiffs’ theory of republication would chill the use of hyperlinks, reducing the free flow of information online and undermining the internet’s potential for disseminating knowledge,” they wrote.

Reporters Committee attorneys have made similar arguments in briefs filed with other state and federal courts within the past couple of years. In Delaware, Reporters Committee attorneys submitted friend-of-the-court briefs in two different courts in support of Vox Media after a tech entrepreneur sued the news organization over allegedly libelous articles that were hyperlinked in a later story. In March, the Delaware Supreme Court affirmed a lower court decision in favor of Vox, holding that the plaintiff’s claims were time-barred and that the hyperlinked article did not republish the original stories.

In another case, the Reporters Committee submitted a friend-of-the-court brief in support of several news organizations that were sued over articles they published about a Russian-born graduate student’s dinner with General Michael Flynn, then the director of the Defense Intelligence Agency. While a district court dismissed the claims arising out of the allegedly defamatory articles because they were filed after the one-year statute of limitations had expired, the student appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that links and social media posts essentially republished the earlier stories, extending the filing deadline she previously missed.

The Reporters Committee’s amicus brief disputed the plaintiff’s republication theory and emphasized the negative impact a ruling in her favor would have on the news media’s ability to do its job.

“Fundamentally,” Reporters Committee attorneys wrote, “the internet is a richer information environment, particularly for journalism, when stories include hyperlinks.”

On April 15, 2021, the Fourth Circuit affirmed the district court’s dismissal of Lokhova’s claims, rejecting the argument that the hyperlinking (or the third-party tweets) pointed to by Lokhova amounted to republication.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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