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Links to Defamatory Sites are Defamatory?

Posted by ryuzaki0 on from the lets-make-this-harder dept.

An anonymous Demon Customer writes "Demon Internet (a UK ISP) are blocking customers' ability to post to USENET through their news servers if a customer posts a message containing a URL to a defamatory article on a website (in this case Dejanews). They claim that the act of posting the URL is equivalent to posting the defamatory article itself. It doesn't end there. If another customer follows- up the original article and has the same URL in the quoted text, they also get their access pulled. Where does it stop? Do message ID's of messages containing the URL count (eg. in the `references' header)? This also opens a whole can of worms for the UK's defamation laws, with regards to the internet. Here is the post from a Demon representative which states their position."

1 of 122 comments (clear)

  1. The Truth is Rather More Interesting . . . by werdna · · Score: 4

    We should not be incredulous that the republication of unprotected speech should be actionable, or even that the posting of an -link to a web site would be deemed republication, so long as reasonable care is taken not to infringe First Amendment concerns. Nor can we assume that mere republication constitutes defamation in its own right. As is often the case in legal matters, the truth is rather more interesting.

    In the U.S., the law concerning republication is complex, in part, because as noted by some other postings, the United States Constitution precludes the state from infringing the freedom of speech in many cases.

    The cases seem to universally acknowledge the proposition that mere publication is not, by itself, enough. "Those who merely deliver or transmit defamatory material previously published by another will be considered to have published the material only if they knew, or had reason to know, that the material was false and defamatory." Barres v. Hold, Rinehart & Winston, 330 A.2d 38 (N.J. 1974); see also Restatement (Second) of Torts section 581.

    There is a historically qualified privilege for carriers such as telegraph companies, unless the plaintiff establishes common-law (not constitutional) malice on the part of the defendant. And there is the Cubby case.

    These general rules are further supported by Supreme Court case law setting forth the constitutional doctrine requiring "fault" as a minimum prerequisite for at least most liability for demfamation. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). There are also some criminal obscenity cases holding that a book store cannot be liable for contents of unreviewed books that they vend.

    On top of all of that, there is also a "fair reporting" privilege for news reporting, because of first Amendment concerns. Repeating a defamatory statement is simply not actionable in public-figure or public-official cases unless the republisher knows the statement is false or is subjectively aware of the probable falsity (which almost never is the case). And in non-public figure cases, the plaintiff will still have difficulty demonstrating the requisite level of "fault" under applicable post-Gertz rules.

    But like "fair use" in copyright, you can't win simply by calling "fair use! fair use!" Its a complex, difficult analysis that defies simple statements of bright-line rules and, is likely to vary from case to case on particular facts. The law is careful that its protection of the Constitutional right does not provide a Constitutional refuge or excuse to widely distribute a quietly published defamatory statement, but is also careful to protect the fourth estate and general first amendment principles.

    For this reason, it is a serious mistake to focus on these cases merely on the technical questions of how a republication is accomplished. The liability will depend upon a host of highly fact-specific inquiries, and could likely go either way depending on those particular facts.

    While it is not a popular thing for a lawyer to answer a question with "maybe," it would nevertheless be irresponsible to suggest that bright line rules govern this subtle and sticky question. I can envision circumstances where an URL-list (regardless of how distributed) can be unactionable mere bibliographic referencing of a document, and still others where it constitutes part of an intentional and willful plan to republish a defamation known to be false.

    So, I wouldn't leap to conclusions -- the truth, as it often is for legal matters, is much more interesting. . .