The hyperlink is that great device that allows an electronic publisher to direct readers to another site to illustrate a point. So, for example, here’s a song I’ve been listening to lately. When a reader clicks on the link, that reader goes to the actual site of the content.
In the example above, the reader will land on YouTube. That is important because the hyperlink isn’t a copyright violation. I’ve not appropriated any material. I am merely directing interested people to the site. Had I cut and pasted the video, such that readers could hear the song and watch the video while remaining on my site, that would be a different story.
But let’s put intellectual property issues aside and think about defamation. If I provide a hyperlink to a defamatory publication, have I defamed the subject of the linked article? The answer is no, according to an appellate court in the state of Washington.
Here’s the facts according to the court. Life Designs, owned by Vince and Bonnie Barranco, is a substance abuse aftercare program for young adults operating from Cusick, Washington. Clients attend Narcotics Anonymous/Alcoholics Anonymous meetings at off-site locations three times a week as part of the program.
In 2012, Michael Sommer contracted to send his son to Life Designs. Mr. Sommer later disputed Life DeSigns' billings. Mr. Sommer e-mailed Vince Barranco as follows:
Please review your contract again. It specifically states that any partial months are billed at full and the last month is not refundable. I think you are in a highly indefensible position. The 26K was put into brackets to show that was the amount we were at THE MOST liable for, not the least. I am willing to get legal with this. Are you? I would hope that the most important thing to you is your reputation. We all know how easily reputations can be destroyed, without the legal system even getting involved. But I would go both routes if I have to. You are wrong on all fronts. Please reconsider before we find it necessary to proceed.
Apparently not satisfied with just an angry e-mail, Mr. Sommer then created a Web site – www.lifedesignsinc.com – on which he continued to rant. Included on the Web site was a hyperlink to a Web site maintained by Human Earth Animal Liberations (HEAL). The HEAL Web site alleged that Life Designs is run like a cult, illegally exploits student labor, and employs a staff member who worked at another camp when a young boy died.
Life Designs sued Sommer for defamation and included in its claim the material from the HEAL web site. In doing so, it raised the question whether the hyperlink constituted a “republication” or a “reference.” The distinction is subtle, but critical.
In considering a libel complaint, courts apply the “single publication” rule. That rule simply means that a statement is published one time and on that one date. So if the subject of a defamatory article doesn’t see it until after the statute of limitations has run, that person is out of luck. The single publication date controls.
If defamatory material is “republished” in a different medium, however, that re-publisher is potentially liable. The republication effectively acts as a new and separate event.
But a republication isn't the same as merely referencing it. Let's say Sports Illustrated publishes a defamatory statement. If I open the page and call a co-worker over to read the passage, I’m merely referencing the defamatory content, not republishing it. And I’m not liable for merely calling attention to the material.
The Washington court held that the hyperlink, which takes a reader to the original publication, is merely a high tech method of referencing the material. It’s not a republication. It’s pretty similar to the intellectual property analysis when you think about it.
The holding makes sense from a theoretical perspective. The hyperlink essentially just says “look at this.” The practical problem of course, is that the hyperlink exposes the defamatory content to potentially millions of new readers. It’s a little different in practice from my Sports Illustrated example. But for now, that appears to be the law.