Want To Avoid Defaming Someone Online? Link To Your Sources (Forbes Cross-Post)

Adelson v. Harris, 2013 WL 5420973 (S.D.N.Y. Sept. 30, 2013)

When you are tweeting or Facebooking, you probably don’t think much about your risk of being sued for defamation. Fortunately, such lawsuits are rare. Unfortunately, even quickly written and seemingly innocuous posts attract scary accusations of defamation more frequently than you’d expect. A few simple steps can reduce the likelihood you’ll be challenged. First, as your mother taught you, always tell the truth. Second, when providing negative feedback, discuss your subjective opinions. Third, if you’re going to assert negative facts, provide hyperlinks to your sources as a form of citation, as a recent court opinion illustrated.

What Happened

The case involves Sheldon Adelson, chairman and CEO of the Las Vegas Sands Corp., which runs the Venetian hotel in Las Vegas, the Marina Bay Sands and other casinos and resorts around the globe. An ex-employee suing the company asserted that Adelson had approved a “prostitution strategy” for the company’s Macau properties–an inflammatory accusation against a prominent businessman, one of the wealthiest men in the world, and a longtime Republican booster. Shortly thereafter, as part of the 2012 presidential elections, the defendants published a website that asserted

this week, reports surfaced that in addition to his anti-union and allegedly corrupt business practices, Adelson ‘personally approved’ of prostitution in his Macau casinos

and hyperlinked to this Associated Press story. The website removed the statement after 8 days and issued a lightly contrite explanation.

The court held that the hyperlink trumped Adelson’s defamation claim against the website for referencing the allegations from the ex-employee’s lawsuit. The court says:

The hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source….[Hyperlinking to sources] fosters the facile dissemination of knowledge on the Internet.

The plaintiff argued that a hyperlink differs from a footnote because it’s not within the document’s “four corners.”  The court dismisses this argument as “formalism that is misplaced in Internet defamation law.” The court points out that hyperlinks are better than footnotes because readers don’t have to make a “sojourn to the library” to check the citation. In a footnote, the court acknowledges the risk of link rot, but sees it as a minor concern because defamation claims must be brought quickly, which reduces the odds link rot will occur during the relevant legal period.

The court concludes that the defendants qualified for anti-SLAPP protection, meaning the case is over and Adelson will write a check to the defendants for their legal fees. Adelson can easily afford to do so, but the ruling still indicates judicial condemnation of the lawsuit’s over-aggressive nature.

Implications

Hyperlinks as a defense. Hyperlinks aren’t a “get-out-of-defamation-free” card, but we’ve recently seen a number of online defamation cases reaching a similar conclusion, including Redmond v. Gawker and Sheldon v. Compass Restaurants. A trend is emerging in court: if you support your negative factual assertions with hyperlinked citations, you can reduce the risk of a successful defamation claim.

State anti-SLAPP laws. The parties battled extensively over which state’s laws applied to the case. The two leading contenders, Nevada and Washington DC, had quite different anti-SLAPP laws. DC enacted a modern and expansive anti-SLAPP law in 2010. This summer, Nevada amended its anti-SLAPP law so that it is similar to DC’s, but at the time of this case, Nevada’s law narrowly covered only matters related to petitioning the government. The defendants fortunately qualified for Nevada’s narrow anti-SLAPP law anyway. Still, heterogeneous state anti-SLAPP laws means some defendants won’t get anti-SLAPP protection simply because they live in the “wrong” state; which results in expensive and time-consuming litigation over state jurisdiction as proxy battles over which anti-SLAPP law might apply. This is one of the many reasons I support a federal anti-SLAPP law; it will establish robust minimum protection for defendants across the country. Unfortunately, Congress has bigger problems to deal with right now, but states independently can (and should) protect their residents from socially wasteful defamation lawsuits.

[Note: I am on the board of directors of Public Participation Project, a non-profit organization lobbying for a federal anti-SLAPP law, but I am speaking only for myself.]

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