This is the second in a series of articles by the Reporters Committee for Freedom of the Press on legal issues that can affect journalists. It is written by Cindy Gierhart, Ethics & Excellence in Journalism Foundation Legal Fellow at the RCFP.
Media scholars have noted for years that news outlets lag significantly behind blogs in their use of hyperlinks. But recent court cases suggest that news media may want to increase their use of hyperlinks as a way of defending against defamation lawsuits.
Let’s take a look at a couple of scenarios where hyperlinks have helped media defendants.
Scenario #1: Facts supporting an opinion
Suppose a blogger writes, “I think the mayor is a thief.” Even though it begins with “I think” and sounds like an opinion, it is followed by an assertion of fact. Standing alone, that statement could be defamatory. But if the writer provides hyperlinks to accurate accounts on which the conclusion is based, then the statement may be considered “pure opinion” and not defamation.
If readers are presented with a series of facts (either in the story or via hyperlinks), they can follow how the writer developed the opinion – and readers can use the facts presented to form their own conclusions. An opinion, even though it’s based on facts, cannot be proven true or false, and thus cannot be defamatory. Without supporting facts, readers are forced to take the writer at his or her word, which legally is the same as stating a fact, which can be considered defamatory.
A federal district court in California confronted this issue as far back as 1999. In Nicosia v. De Rooy, Diane De Rooy alleged on her website that Gerald Nicosia embezzled money from the estate of Jack Kerouac’s daughter. The court ruled that De Rooy sufficiently disclosed the underlying facts behind her claim by hyperlinking to other articles she wrote on her website.
“These [hyperlinked] articles were at least as connected to the news group posting as the back page of a newspaper is connected to the front,” the court wrote, and therefore they should be considered facts she disclosed to support her claim.
This does not mean you can say whatever you want so long as you add hyperlinks. The linked resources must support your statement and provide a basis for your opinion.
It is best to explain the underlying facts within the text of your article and not rely solely on hyperlinks. Links can break, or you could find yourself in a court that doesn’t recognize the importance of hyperlinks. But adding hyperlinks as a precaution or as additional information certainly couldn’t hurt.
Scenario #2: Piggybacking on another’s fair report privilege
The “fair report privilege” is a legal defense to defamation. It provides immunity from liability – even if the statement turns out to be false – so long as you obtained the information from an official public document or a statement by a public official, you cited the document or official as your source, and you fairly and accurately relayed the information from the source.
For example, in court documents, a soon-to-be-ex-wife accuses her famed politician husband of having an affair. A reporter accurately and fairly reports on the accusation, citing the court records. A blogger then writes that “allegations of an affair surface.” The blogger does not mention the court documents, but he hyperlinks to the original news story. The husband, in fact, did not have an affair. The statement was false.
Traditionally, the first reporter would be covered by the fair report privilege because his account was based on court documents. The blogger – without disclosing that his information came from public documents – would not be protected by the privilege.
A federal court in New York recently grappled with this issue in Adelson v. Harris. The National Jewish Democratic Council (NJDC) wrote on its website that “reports surfaced” that Sheldon Adelson “‘personally approved’ of prostitution in his Macau casinos.” The phrase “personally approved” was hyperlinked to an Associated Press story, which quoted a court document in which a former casino executive accused Adelson of approving of prostitution at the casino.
Because the AP story was protected by the fair report privilege (even if the allegation was false), the court ruled that the NJDC was also protected by the privilege because it linked to the AP story. (The case is currently on appeal.)
“It is true, of course, that shielding defendants who hyperlink to their sources makes it more difficult to redress defamation in cyberspace,” the court wrote. But that’s a good thing. “It is to be expected, and celebrated, that the increasing access to information should decrease the need for defamation suits,” the court wrote.
There are a few limitations to this approach, however.
First, not all states recognize a fair report privilege, and those that do vary as to what documents or statements are covered by the privilege.
Second, Adelson was decided by a federal court in New York interpreting Nevada law. Another court interpreting another state’s law might rule differently. It is best to always attribute your information directly to the public document or official from which you obtained the information and only rely on hyperlinking as a backup.
Hyperlinking cannot put an end to all defamation claims. But given the recent court decisions, news media may want to rethink their hyperlinking strategy.