Another Case Says No Liability for Linking to Allegedly Defamatory Content, Plus a Recap (Guest Blog Post)
Vazquez v. Buhl, 2012 WL 3641581 (Conn. Super. July 17, 2012)
[Eric's Note: Sam Bayard is an associate at Davis Wright Tremaine LLP in New York. I got to know him during his stint at the Citizen Media Law Project. A few months ago, we had exchanged emails regarding cases applying Section 230 to linking to defamatory content, and we found that the topic was a little more confusing than either of us expected. As a result, I've asked him to blog about the recent Vazquez v. Buhl decision and to summarize the overall state of play here. The views expressed in this post are his own and do not necessarily reflect those of others at the firm or its clients.]
Eric’s recent post on Directory Assistants, Inc. v. Supermedia, LLC, 2012 WL 3329615 (E.D. Va. May 30, 2012), reminded me that I owe him a guest post on a topic we’ve been discussing on EFF’s Section 230 list: the law on linking to allegedly defamatory content. Then, Eric forwarded me a recent case that addresses the issue head on and comes out the right way.
In Vazquez v. Buhl, the plaintiff sued Teri Buhl, a financial reporter, for posting allegedly defamatory statements on her website. He also sued NBCUniversal for publishing an article on CNBC.com called “The Sex and Money Scandal Rocking Hedge Fund Land.” The CNBC.com article referred to Buhl as a “veteran financial reporter” who “knows her way around the Connecticut hedge fund beat” and provided a link to her webiste, adding “I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.” The complaint alleged that NBCUniversal “published, distributed, endorsed and promoted Buhl’s defamatory statement by validating Buhl’s credibility.”
NBCUniversal filed a motion to strike the Complaint based on (Section 230 , and Judge David R. Tobin of the Superior Court of Connecticut granted the motion. The court focused its analysis on whether NBCUniversal was a “content provider” with respect to Buhl’s statements, citing Roommates.com for the proposition that a website becomes a content provider “if it contributes materially to the alleged illegality of the content.” (N.B. Another defense-side win citing Roommates.com.) The court was not convinced that NBCUniversal did anything of the kind, running through Section 230 case law holding that a defendant does not become a content provider by selecting or making minor alterations to content or by adding headings or other introductory material so long as that content is not itself defamatory (the latter relying on Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281 (2011)).
In the end, the court easily concluded that merely providing a positive introduction and link did not make NBCUniversal an information content provider with respect to Buhl’s content:
In the present matter, NBCUniversal included an introduction to and hyperlink to Buhl’s allegedly defamatory statements. The plaintiff has not alleged in his complaint that the [CNBC.com] article or NBCUniversal’s statements were defamatory, just that the defamatory statements were made available by hyperlink. Although NBCUniversal added an introduction leading readers to the defamatory statements, [it] did not materially create or develop any of the allegedly defamatory statements. Even though NBC Universal’s actions might have increased readership of the defamatory statements, its actions do not amount to either the creation or development of the allegedly defamatory statement which it did not author or even edit.
Vazquez, 2012 WL 3641581, at *4. This is the right conclusion under the plain language of the statute, and it is encouraging to see a court deal squarely with such a ubiquitous practice that is so vital to Internet publishing and communication.
Hopefully, Vazquez and Directory Assistants, though lower court decisions, will help bring much needed to clarity to the law on linking to allegedly defamatory content. As Eric wrote in his post, protection for linking is so “completely obvious and intuitive” that it is hard to believe that there’s not more case law out there on the topic. Unfortunately relatively few decisions directly address the point and several cases treat it in a fairly oblique or terse manner. Nevertheless, the bottom line is that linking to allegedly defamatory content shouldn’t give rise to liability. The two reasons courts commonly cite are (1) Section 230; and (2) linking does not constitute a “publication” or “republication” of the allegedly defamatory content. Below I provide a round-up of the cases, expanding a little on those mentioned at the end of Eric’s post.
Section 230 Cases
Section 230 definitely is the first line of defense for any defamation or other tort claim based on linking. As noted, the plain language of the statute covers linking to third-party content, i.e. “information provided by another information content provider.” One reservation you hear voiced from time-to-time is that the linker has somehow crossed the line by actively choosing the content rather than passively receiving content like most websites that publish user comments. This objection is a non-starter: scores of cases recognize that Section 230 protects the exercise of traditional editorial functions, which include selecting what gets published and what does not. So the “passive” versus “active” distinction is not terribly meaningful. And then there’s Barrett v. Rosenthal, 51 Cal.Rptr.3d 55 (Cal. 2006), a well-respected opinion from the California Supreme Court that specifically rejects this distinction, see id. at 75-77, though the case did not directly address linking.
Another California state case, McVey v. Day, 2008 WL 5395214 (Cal. App. Ct. Dec. 23, 2008) (see specifically Section B(3)(c)), is more on point factually. There, the plaintiff alleged that the defendant sent an email with links to a website containing allegedly defamatory material. Although the court’s reasoning is neither extensive nor particularly clear, it dismissed the claim based on Section 230, citing Barrett. Shrader v. Biddinger, 2012 WL 976032 (D. Colo. February 17, 2012), is also directly on point. (See Eric’s post on Shrader.) In that case, someone named Stewart had a business disagreement with the plaintiff Shrader. Stewart emailed critical comments about Shrader to Biddinger, who posted the email on a forum called Wave59. One of the principals of Wave 59, named Beann, emailed several people directing them (presumably through a link) to Biddinger’s posting. The court granted Beann’s and Wave 59’s motion to dismiss based on Section 230. With respect to Beann’s email, the court wrote:
Plaintiff also asserts that Beann contacted third parties, directing them to the posting on the bulletin board. Beann denies this allegation and asserts that even if this claim had factual support, that sort of conduct, in and of itself, is also protected under the CDA. This court agrees that even if Beann “directed” users of the board to Exhibit H, such conduct does not diminish the protections of the CDA’s immunity.
Slip Op. at 16 (citing Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D.D.C. 1998)). The citation to Drudge does not make a whole lot of sense under the circumstances, but the court at least reaches the conclusion that simply directing users to a third-party posting is covered by Section 230.
A couple of other Section 230 cases should be mentioned. In Parker v. Google, 422 F. Supp. 2d 492, 500-01 (E.D. Pa. 2006), aff’d, 242 Fed. Appx. 833 (3d Cir. 2007), the district court held and the Third Circuit agreed that Google could not be held liable for providing links to websites with allegedly defamatory comments about the plaintiff. Also of note is Deer Consumer Products, Inc. v. Little, 2011 NY Slip Op 51691(U) (N.Y. Sup. Ct., N.Y. Cty., Aug. 31, 2011), where the plaintiff, a seller of home appliances, sued Alfred Little and Seeking Alpha, Ltd. (“SAL”) for defamation over allegedly defamatory “reports” written by Little that appeared on SAL’s website, seekingalpha.com. SAL moved to dismiss and the court granted the motion. Most of the decision is plain-vanilla Section 230 fare, relating to reports authored by Little and posted on SAL’s website. But the statement of facts indicates that “[t]he remaining two ‘reports’ in issue were not published on SAL’s website; they were accessible through the website by clicking on a link (to a third-party website) in a reader’s comment . . . .” The court never mentions or analyzes these linked-to “reports” again, but the court’s holding that Section 230 barred the plaintiff’s claims in their entirety surely should encompass the linking allegations.
If for some reason Section 230 does not provide a defense, whether because of a reluctant judge or uncooperative facts (such as linking to your own content), a defendant has a good chance of prevailing on the argument that simply providing a link is not publication or republication of the underlying content. The best case is, alas, from Canada. In Crookes v. Newton, 2011 SCC 47 (Canadian Sup. Ct. 2011), the Supreme Court of Canada held that providing a hyperlink to allegedly defamatory material is not a “publication” of that material giving rise to defamation liability. Slip Op. at 15, 19, 33-34. The plaintiff, Wayne Crookes, brought a series of lawsuits against several individuals he claimed were responsible for defamatory articles published on a number of websites. Id. at 15. John Newton published an article on his website about these cases called “Free Speech in Canada,” and the article contained hyperlinks to other websites, which in turn contained information about Crookes. Crookes sued Newton claiming that two of the hyperlinks led to defamatory material. Id. After a thorough analysis of the common law relating to publication, the Court determined that a hyperlink should not be deemed a publication of the linked-to material. Id. at 23-24.
The Supreme Court of Canada relied on two old New York cases in reaching this conclusion. One is Klein v. Biben, 296 N.Y. 638 (1946), in which the New York Court of Appeals ruled that an article that stated “For more details about [the plaintiff], see the Washington News Letter in the American Hebrew, May 12, 1944” was not a republication of the May 12 article. The second is McFadden v. Anthony, 117 N.Y.S.2d 520 (N.Y. Sup. Ct., N.Y. Cty. 1952), where a New York trial court held that a radio broadcast did not publish or republish an allegedly defamatory magazine article simply by calling attention to the article when the allegedly defamatory statements were not repeated. In Crookes, The Supreme Court of Canada also relied on policy analysis, doing a great job of encapsulating the problem with holding internet users liable for linking:
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.
Slip Op. at 29.
Moving back to the United States, the Third Circuit recently ruled in In re Philadelphia Newspapers, LLC, No. 11-3257 (3d Cir. July 26, 2012), that publishing a link and favorable reference to a webpage which in turn linked to allegedly defamatory articles did not constitute a republication of those articles. Slip Op. at 25-27. The court’s reasoning draws heavily on cases applying the single publication rule and holding that linking to an article does not republish the article for purposes of the statute of limitations. See Salyer v. Southern Poverty Law Center, 701 F. Supp. 2d 912 (W.D. Ky. 2009); Churchill v. State of N.J., 876 A.2d 311 (N.J. Super. Ct. 2005); Sundance Image Technology, Inc. v. Cone Editions Press, Ltd., No. 02 CV 2258 JM (AJB), 2007 WL 935703 (S.D.Cal. March 7, 2007).
One final case is worth mentioning, In re Gemtronics, Inc., Docket No. 9330, Initial Decision (F.T.C. A.L.J. Sept. 16, 2009), though it is not a defamation case and linking plays a rather small role in the decision. In that case, an administrative law judge found that the defendant was not liable under Sections 5(a) and 12 of the Federal Trade Commission Act for allegedly false advertising appearing on a website that he did not operate or control, but to which he had provided links to (among other things). See Slip Op. at 26, 53.
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Hopefully having these cases collected together here will prove helpful to the reader. In all likelihood, I’ve missed a case or two—so please get in touch with me if you’ve got some more. And if anyone’s got a PDF copy of Vazquez v. Buhl, please send that along too..