In an unusual decision, the U.S. Bankruptcy Court for the Southern District of Texas found that emailing hyperlinks directing others to view a third-party’s blog is a sufficient “publication” to sustain a defamation claim under state law.
The decision in In re Perry is particularly surprising because under the Communications Decency Act, 47 U.S.C. § 230, a federal statute aimed to foster free online communication, courts typically refuse to treat an online service provider linking to third-party content as a “publisher” for the purposes of defamation. While an email communicator is unlikely to fall within the definition of an online service provider, its application, at least by analogy, was not present here.
The ruling arose during a bench trial on numerous defamation and fraud claims brought in bankruptcy court against a debtor, William Perry, in his Chapter 11 bankruptcy proceeding. A former partner of Perry’s in a real estate venture, David Wallace – who was also the mayor of Sugar Land, Texas, and a candidate for U.S. Congress – brought one of the defamation claims.
Perry and Wallace’s relationship had soured and the partnership dissolved. The court focused on Wallace’s claim concerning an email that Perry sent to several people containing hyperlinks to the Rhymes with Right blog. Perry had not written the blog; its author remains unknown. The blog contained a discussion of Wallace’s prior associations with the son of former British Prime Minister Margaret Thatcher, which the court found falsely “insinuated ... that Wallace was an arms dealer and was in league with Mark Thatcher in attempting to overthrow the government of Equatorial Guinea.”
The court found that Perry’s email containing hyperlinks to the blog met the “publication” element of Wallace’s defamation claim under Texas defamation law: “a statement is published when it is said orally, put into writing or in print, and the statement was published in such a way that the third parties are capable of understanding its defamatory nature.” Thus, the court found that “an email, just like a letter or a note, is a means for a statement to be published so that third parties are capable of understanding the defamatory nature of the statements.” The court also found that Perry acted with actual malice and defamed Wallace by sending the links, together with other defamatory statements.
However, the court failed to address, and the decision does not indicate whether Perry raised, or whether section 230 prevented Perry from being treated as the “publisher” of the defamatory statements contained in the blog by merely sending an email linking to that blog. Section 230 states that: “No 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.” Traditionally, this means that a plaintiff cannot sue a website operator for defamatory statements made by a third party.
As to Perry’s email, the court focused entirely on the content of the blog. The trial revealed Perry as having no involvement in writing the blog, but instead assumed publication by Perry’s sending the links. Though it is questionable whether Congress intended section 230 to protect people for emailing links, rather than publishing them online, the court’s decision is nonetheless curious. If emailing links to third-party content is publication giving rise to liability, then can a local news website linking to a blog later determined to contain defamatory content be far behind? While section 230 has been defeated where a website operator materially alters third-party content, or actively encourages or induces unlawful activity, liability for merely directing another person to view third-party is quite atypical.