Hyperlinks Less Likely to Be Found Defamatory in U.S. than UK

Published May 31, 2016

The English High Court has determined Web sites may be found guilty of defamation if they include hyperlinks to other sites actually featuring the libelous material. Conversely, the Supreme Court of Canada unanimously ruled in October 2011 that the online posting of a hyperlink does not constitute a publication of an alleged defamatory statement.

Legal experts suggest the United States has more in common with our neighbors north of the border than our cousins across the pond.

David Roland, director of litigation at the Freedom Center of Missouri argues the First Amendment of the U.S. Constitution provides plenty of protection for a corporation being charged with libel for reporting defamatory statements made by a third party.

“The only situation I could see where a corporation might lose in a case like this would be if they knew the statements were false and they reported them anyway. Truth is always a full defense against defamation, and no American newspaper has ever been found guilty of reporting defamatory statements made by someone else,” Roland explained.

Legal Remedies More Difficult
The 2012 UK ruling in McGrath v. Dawkins illustrates the dangers of linking to external sites from a corporate Web site and the challenge facing internet service providers in establishing defenses against liability claims under British law. The Canadian case, Crookes v. Newton, on the other hand, upholds online free-speech rights by maintaining an online hyperlink is defamatory only if it actually repeats defamatory material.

The Canadian ruling greatly reduces the chance someone will be held liable for defamation simply by linking to a site that contains defamatory material. But from the perspective of the defamed parties, the decision will likely make it more difficult to stop the spread of defamatory statements and seek a legal remedy for them.

U.S. Law Is Clear
Eric Goldman, director of the High Tech Law Institute at Santa Clara University in California, says U.S. Web sites will not be subjected to a decision like Great Britain’s because Section 230 of the Communications Decency Act prevents a Web site from being held liable for the content at the other end of a link.

“We don’t have many cases demonstrating this point,” said Goldman. “But then again, we almost never see lawsuits on this point filed in the U.S., either. The only exception is that some government agencies have argued that Web sites effectively endorse the content they link to, and thus those Web sites do take legal responsibility for the linked content. An example is the Securities and Exchange Commission, which believes that securities issuers endorse content they link to. I believe these government agencies are incorrect as a matter of law, and that they would lose any legal battle over their theory if tested in court.”

Lee Tien, senior staff attorney at the Electronic Frontier Foundation in San Francisco, says he too wouldn’t expect anything like the British verdict to happen here.

“In fact, we have an online law that protects chat boards from what users say,” Tien said. “It’s one of the better things Congress has done for the Internet. If you could sue the messenger, you wouldn’t have Facebook, for instance.”

Kenneth Artz ([email protected]) writes from Dallas, Texas.

Internet Info

“Section 230 of the Communications Decency Act,” Citizen Media Law Project: