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Hyperlink does not constitute republication of defamation



By Patrick Ogilvy

A U.S. District Court in Florida has determined a news article including a hyperlink to another article found to contain defamatory content did not constitute republication of the defamatory content, and accordingly, the publisher of the article containing the hyperlink was not liable for defamation.

The news articles in question
A prominent attorney licensed in several states and his former spouse were engaged in highly contentious child custody and support proceedings involving fourteen days of court hearings in an Ohio court. The magistrate judge presiding over the hearings issued a more than 90-page decision, including findings the attorney had engaged in inappropriate touching of his child based on evidence presented by the child’s pediatrician and a social worker. Although the magistrate judge acknowledged the attorney denied touching his child, the magistrate judge also noted the attorney refused to answer questions from Children Services or the Sheriff’s Department, and refused to answer questions on the subject during the hearings. The attorney appealed the magistrate judge’s decision, but the Ohio Court of Appeals rejected the attorney’s claims of error.

Ohio to Minnesota to Arizona
Sometime later, a Minneapolis lifestyle publication published an article referencing the attorney’s alleged sexual abuse of his child, stating “Turns out, gays aren’t the only ones capable of disturbing, criminal sexual behavior – apparently even conservative straight guys . . . can turn out to be total creeps.” The author of the article explained he based the article on his review of an opinion by the Ohio Court of Appeals and used the word “criminal” because he understood the conduct described in the opinion about the attorney constituted “criminal” behavior.

Several months later, a Phoenix newspaper published an article about the attorney and the findings by the magistrate judge and court of appeals regarding the attorney’s conduct. The Phoenix newspaper article also contained a reference and a hyperlink to the Minneapolis lifestyle publication article.

The same newspaper later published another article stating the attorney was under investigation by the Arizona Bar Association. Based on these articles, the attorney sued the publications and the authors in a Florida federal district court for defamation.

Regarding the article by the Minneapolis lifestyle publication stating the attorney engaged in “criminal” behavior, the district court found this statement could reasonably be viewed as implying the attorney had been convicted of a crime, which he had not. Accordingly, the court determined the attorney was entitled to a trial on his defamation claim against the Minneapolis publication and author.

Hyperlink not enough
The Phoenix newspaper article, however, made clear throughout it was referring to the decisions by the magistrate judge and Ohio Court of Appeals, which were both true. As such, the Phoenix newspaper made no defamatory statement.

The attorney then claimed the Phoenix newspaper should also be held liable for any defamation committed by the Minneapolis publication because the Phoenix newspaper article hyperlinked to the Minneapolis publication article. The district court rejected this argument, finding no support from any prior cases for the contention a hyperlink to a previously published defamatory statement constitutes republication of the statement.

The district court also found the attorney, who conceded to being a public figure, could not establish any of the publications had actual malice in publishing statements about him. In particular, the court noted the attorney had a fundamental misunderstanding of the type of “actual malice” at issue in defamation cases.

A defamation claim involving a public figure requires a showing the publisher knew or had reckless disregard for whether the published statements were false to prove actual malice. The attorney, on the other hand, repeatedly claimed the publications and authors sought to “maliciously smear and destroy the reputation and credibility of” the attorney and described how the articles “drip with malice and bitter intent.”

The district court found no amount of repeating the word “malice” could overcome the constitutional actual malice requirement of knowledge of or reckless disregard for falsity of the statements.  Therefore, the court dismissed the entire case.




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