May a Website That Provides a Link to an Article be Liable for Defamation Based on the Article’s Content?

Can you hyperlink yourself into a lawsuit? Do you need to fact check every article you reference in an Internet posting?

In In re Philadelphia Newspapers v. Vahan H. Gureghian. 11-3257, 2012 WL 3038578 (3d Cir. July 26, 2012), the Philadelphia Inquirer (“Defendant”) wrote an online column about the Plaintiff that included links to a website. The website contained alleged defamatory material about the Plaintiff. Defendant did not author the alleged defamatory material, which was published more than a year ago. Plaintiff sued Defendant for defamation because Defendant provided those links within his column.

In an attempt to avoid tolling the 1-year statute of limitations (“Statute of Limitations”) that applies to defamation claims, Plaintiff argued that the links amounted to republication. The reason is that republication of a defamatory statement can begin a new Statute of Limitations. As a result, a violation of the original Statute of Limitations would not have barred Plaintiff from filing suit against the Defendant.

In its analysis, the Court considered two important legal doctrines: the “single publication rule” and the “doctrine of republication.”

Single Publication Rule

For a plaintiff to succeed in a defamation suit, the defendant must have published the defamatory material. Under the “single publication rule” a defendant is considered to have published the material only if he or she is the original publisher. The “single publication rule” enables only the original printing of the defamatory material – and not the circulation of the material – to trigger the Statute of Limitations. Otherwise, the Statute of Limitations would start over every time one re-circulated defamatory material. This could result in an effectively meaningless Statute of Limitations because it would potentially never end.

Doctrine of Republication

The “single publication rule” is limited by the “doctrine of republication.” The “doctrine of republication” states that “republishing” material will restart the Statute of Limitations. This raises the important question: when does a “republishing” occur? The Court analyzed this issue as follows:

An exception to the single publication rule is the doctrine of republication. Republishing material (for example, the 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. Restatement (Second) of Torts § 577(A); Davis v. Mitan (In re Davis), 347 B.R. 607, 611 (W.D. Ky. 2006). Traditional principles of republication thus require the retransmission of the allegedly defamatory material itself for the doctrine to apply. However, 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). See Davis, 347 B.R. at 611-12.

Additionally, the Court cited Salyer v. Southern Poverty Law Center Inc., which held that a link is not a republication under similar facts. Salyer v. Southern Poverty Law Center Inc., 701 F.Supp.2d 912 (W.D.Ky.2009). In Salyer, the defendant provided links to defamatory material and referenced that material several times in articles posted on its website. The Salyer court explained that, although a link calls attention to defamatory material, it does not present the defamatory material. A link is simply a means for accessing the referenced article, it is not a republication. Therefore the Salyer court held that the posting of links did not amount to republication.

In accordance with the Salyer precedent, the Philadelphia Newspapers Court held that links do not amount to republication. Therefore Plaintiff was barred by the Statute of Limitations from proceeding against the Defendant for defamation. The Court expressed the concern that, if it were to hold otherwise, the Statute of Limitations could be triggered endlessly because websites are constantly linked and updated. Allowing each link or technical change to restart the Statute of Limitations would effectively eliminate the Statute of Limitations.

The take away from this analysis is that under certain limited circumstances, linking or referencing defamatory material that you did not write may be grounds to restart the Statute of Limitations. While there are facts in which that will not be the case, it is wise to avoid linking to web pages contain defamatory statements, regardless of how long ago the statement was made.