Category Archives: defamation

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.

Comments/Questions: gdn@gdnlaw.com
© 2013 Nissenbaum Law Group, LLC

What does it take to prove Cyberbullying?

Cyberbullying occurs when one person repeatedly uses information technology such as blogs, chat rooms, cell phones, e-mails or instant messaging to deliberately threaten, harass or intimidate another person(s). Cyberbullying also includes cyberstalking; sending sexually offensive messages to the victim; monitoring the victim’s online activities; sharing private or intimate information about the victim with others; and/or intentionally infecting the victim’s computer with a virus. Technology has created the opportunity for new forms of harassment in a variety of ways and from any distance. With the rapid spread of social networking sites and other Internet communication forums, there has been a tremendous increase in the Cyberbullying cases both in the federal and state courts.

Cyberbullying is not just confined to children. Adults working at large companies or educational institutions can also be victims. Cyberbullying can not only result in hurt feelings but also in severe harm to the victim, up to and including precipitating a suicide.  In many states, there are statutes passed by the Legislature that outlaw Cyberbullying.

Unfortunately, in the absence of such a statute, the common law does not generally recognize Cyberbullying as an independent tort. However, the victims of Cyberbullying can often bring a garden variety cause of action for defamation or intentional infliction of emotional distress when they are the victim of such behavior.

To prove intentional infliction of emotional distress, the victim has the burden to show that the harasser’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. American Home Prods. Corp, 58 N.Y.2d 293 (1983). The victim also needs to prove that the victim suffered sustained financial, physical or psychological injury due to the harasser’s conduct.

To prove defamation, the victim is required to show the following:

  1. The defendant made defamatory statement regarding the plaintiff
  2. The defendant published the statement to others; and
  3. Injury resulted to the plaintiff.

Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991).

Thus, there are potential common law remedies for Cyberbullying even in the absence of a specific statute providing relief.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Can Anonymous Online Users Be Sued For Defamation?

Can the comments of anonymous online users provide the basis for a plaintiff’s defamation suit? If the users are expressing their opinion, the answer is probably no.

In Varrenti v. Gannett Co., Inc, the chief and three officers of the Brockport (N.Y.) Police Department sought to compel the Rochester Democrat & Chronicle to reveal the names and addresses of four anonymous individuals who had commented on two articles posted on the newspaper’s website between January 17 and January 20, 2011. Varrenti v. Gannett Co., Inc., 2011 NY Slip Op 21296 (N.Y. Sup. Ct. Aug. 3, 2011). The comments referred to the officers by nicknames and questioned the general effectiveness of the Village’s police department. The plaintiffs alleged that they were defamed by the anonymous defendants’ comments.

While the First Amendment protects anonymous speech, defamatory speech – whether by anonymous or identifiable sources, in print or online – is not protected. Id. at 6. However, as the Court discussed, “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.” Id. Therefore, if the Court determined that the anonymous defendants were merely expressing their opinions, the comments could not be the subject of a defamation suit.

The question of whether a particular statement reflects an opinion or an objective fact is a question of law for the court to decide. In order to determine whether a statement is an opinion or fact, courts consider the following factors:

1) Whether the specific language at issue has a precise meaning which is readily understood,

2) Whether the statements are capable of being proven true or false, and

3) Whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.

Id. at 7.

Courts place a particularly strong emphasis on the third factor, which requires “consider[ing] the content of the communication as a whole, as well as its tone and apparent purpose.” Id. This includes looking to the overall context in which the statements were made and determining “on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff.” Id. at 8.

In this case, the Court determined that the reasonable reader would interpret the statements as opinions of the anonymous defendants and, consequently, they could not be the subject of a defamation suit. “The tone of the comments was sarcastic, hyperbolic, and based on rumors that the anonymous posters heard around the Village of Brockport and about the Department,” the Court said. “Moreover, the apparent purpose of the comments made by the…defendants was to call for an investigation into the Department’s practices.” The Court’s finding was additionally influenced by the nature of the location in which the comments appeared: a message forum inviting readers to share their opinions on local news matters.

The Court’s decision grants strong protection for those posting critical commentary behind anonymous usernames. This decision is particularly significant for those who find themselves as the subject of criticism in online message boards. As long as opinions are deemed privileged, plaintiffs will struggle to recover on defamation grounds.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

An Internet Service Provider is Generally Protected from Liability for Defamation by the Federal Communications Decency Act

On September 2, 2010, the Supreme Court of New York, New York County decided a case in which it determined a defamation claim regarding negative remarks about the plaintiff’s dental practice posted by a third-party on defendant’s web page.  The court in Reit v. YELP!, Inc., et al. –N.Y.S.2d—, 2010 WL 3490167 (N.Y.Sup.), held that the Federal Communication Decency Act of 1996 (“CDA”) protected Yelp from liability for defamation.  The Court analyzed plaintiff’s defamation claim pursuant to the CDA and stated:   

Section 230 of the CDA provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” (CDA § 230[c][1] ), and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section” (Id., § 230[e][3] ).  “Interactive computer service” is defined as “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server …” (CDA § 230[f][2] ).  An “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other information computer service” (CDA § 230[f][3] ).

Id. at 1.

Through the CDA, Congress granted interactive computer services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.  Similarly, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred.  However, an internet computer service is liable for its own speech, or when it develops information.

Id. at 2.

The Court held that the plaintiff’s defamation claim was barred by the CDA because defendant was an interactive computer service as defined under the CDA and was not considered an internet content provider.  The allegedly defamatory content was supplied by a third party information content provider and consisted of a message board posting.  Id.  Thus, the Court granted defendant’s motion to dismiss plaintiff’s complaint.       


Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

Court Orders That the Identities of Anonymous Internet Posters be Disclosed

Under certain circumstances, people who defame others anonymously on the Internet may lose their anonymity.   A recent example is a  case decided on July 12, 2010,  In re: Anonymous Online Speakers, Anonymous Online Speakers, v. United States District Court for the District of Nevada Reno, 611 F.3d 653, 10 Cal. Daily Op. Serv. 8774, 2010 Daily Journal D.A.R. 10,795 (Ninth Cir. 2010). That matter involved Quixtar, a “[m]ultilevel marketing business [that]  brought suit alleging that [a] competitor [TEAM] orchestrated [an] Internet smear campaign via anonymous postings and videos disparaging it and its business practices. As part of discovery process, the [lower Court] , ordered [the] competitor's online content manager to disclose identity of three of five online speakers who allegedly made the defamatory comments.” Id.

 

Examples of the alleged defamatory statements included the following:  “Quixtar has regularly, but secretly, acknowledged that its products are overpriced and not sellable”; “Quixtar refused to pay bonuses to IBOs in good standing”; Quixtar “terminated IBOs without due process”; “Quixtar currently suffers from systemic dishonesty”; and “Quixtar is aware of, approves, promotes, and facilitates the systematic noncompliance with the FTC's Amway rules.”  Id. at 656.

 

The Court acknowledged that First Amendment protections involving anonymous speech apply to the Internet, as well. “ First Amendment protection for anonymous speech was first articulated a half-century ago in the context of political speech, Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), but as the Supreme Court later observed, the Talley decision hearkened back to “a respected tradition of anonymity in the advocacy of political causes.” McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Undoubtedly the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym “Publius.” Id. at 344 n. 6, 115 S.Ct. 1511. Their opponents, the Anti-Federalists, also published anonymously, cloaking their real identities with pseudonyms such as “Brutus,” “Centinel,” and “The Federal Farmer.” Id... Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech-there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without “fear of economic or official retaliation … [or] concern about social ostracism.” McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511.” Id. at 656-7.

 

    The Court also acknowledged that just because this was commercial speech, not political speech, that did not mean it lacked First Amendment protection. “The Internet postings and video at issue in the petition and cross-petition are best described as types of ‘expression related solely to the economic interests of the speaker and its audience’ and are thus properly categorized as commercial speech. Central Hudson Gas & Elec. Corp., 447 U.S. at 561, 100 S.Ct. 2343. The claimed disparagement goes to the heart of Quixtar's commercial practices and its business operations. However, this characterization alone does not determine the First Amendment protections for the anonymous commercial speech central to this case. The Supreme Court has underscored that “an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of *658 speech protected by the First Amendment.” McIntyre, 514 U.S. at 342, 115 S.Ct. 1511.” Id. at 657.

 

 The Court concluded that “[t]he district court here appropriately considered the important value of anonymous speech balanced against a party's need for relevant discovery in a civil action. It also recognized the “great potential for irresponsible, malicious, and harmful communication” and that particularly in the age of the Internet, the “speed and power of internet technology makes it difficult for the truth to ‘catch up’ to the lie.” Id. at 661

 

Accordingly, the Court of Appeals held  that because the lower Court’s ruling was not clearly erroneous, they would not disturb it on appeal.