Update: This blog post has been updated to reflect the April 15, 2021 United States Court of Appeals decision for the Fourth Circuit in Lokhova vs. Halper.
Hyperlinks are an essential part of online journalism. From highlighting previous coverage to presenting a journalist’s sources, they can help readers take advantage of the Internet’s almost limitless information capacity.
But these benefits haven’t stopped people from suing journalists and news outlets for libel – long after the statute of limitations has expired – simply because an allegedly libelous article was hyperlinked, and therefore, they claim, republished, at a later date.
It is an approach that has not withstood the scrutiny of courts across the country. Yet even if rarely successful, such lawsuits can have a chilling effect on online journalism, discouraging news agencies from using hyperlinks to avoid liability.
The Reporters Committee recently urged state and federal courts to dismiss plaintiffs’ claims that hyperlinks extend the statute of limitations for bringing defamation claims, arguing that such claims, if upheld, pose a significant threat to an individual. crucial tool that journalists use to inform and educate the public.
“Hyperlinks help online readers gain valuable context for today’s headlines,” said Emily Brown, Legal Officer for the Reporters Committee. “Hyperlink-based libel lawsuits attempt to extend the repost rule to an absurd extent – and end up undermining the ability of online journalists to tell the whole story.”
Republishing in the Internet Age
In the 19th century, long before the onset of the Internet, English common law held that an allegedly defamatory remark could give rise to a separate cause of action for each new audience it reached. This meant that every time a book or journal changed hands, it was considered republished – and the statute of limitations clock was reset. In a 172-year-old judgment that continues to making waves in the UK, for example, the Duke of Brunswick successfully sued for libel based on an issue of a 17-year-old newspaper which he claimed was libelous.
Things changed in the United States after the courts recognized the deterrent effect of this multiple publication rule on the press. And with the advent of mass printing, such a rule would have the potential to increase the number of libel suits for a single edition to millions. The English precedent, wrote the California Supreme Court in 2003, “Threatened a volume of litigation and the potential for indefinite toll of the statute of limitations which, these courts realized, would challenge the ability and willingness of publishers to report freely on current affairs and matters of interest. public. “
The courts have adopted the “one-time publication” rule we have today, which governs libel suits both in print and online. Under this rule, defamatory content gives rise to a single cause of action when it is first posted – and any subsequent distribution of the same content does not create a new cause of action or extend the limitation period, which, in most jurisdictions, is one year. (Reposting can occur when a speaker substantially modifies a previously published article or intentionally publishes it for a new audience.)
Despite these rules about what constitutes a republication, defamation claims continue to be filed after the limitation period has expired, although such late claims rarely succeed. Hyperlinks are the latest way plaintiffs have tried to reduce the one-time publication rule – and Reporters Committee lawyers are fighting to have the courts keep it intact.
“As long as these prescribed libel suits continue to be filed across the country,” said Brown, “we will continue to fight them.”
Involvement of the Committee of Rapporteurs
Two years after blogger Julie Globus published a series of articles about real estate titans Louis and Joel Kestenbaum, the father and son, along with their company, sued the writer for libel in 2018.
The lawsuit came more than a year after the New York statute of limitations expired for the original items. But he alleged that Globus reposted his work when an auto-generated hyperlink for one of the previous stories appeared in a sidebar of a webpage for an unrelated article from 2017. Since this article appeared within the statute of limitations, a libel action could continue, argued the Kestenbaums.
In a friend of the court brief filed earlier this year, lawyers for the Reporters Committee argued that the hyperlink was not a repost – and that such a rule would “deprive Internet users and publishers of a essential tool for understanding online information ”.
“A decision that adopts the plaintiff republication theory would curb the use of hyperlinks, reducing the free flow of information online and compromising the Internet’s potential for knowledge dissemination,” they wrote.
Lawyers for the Reporters Committee have made similar arguments in briefs filed with other state and federal courts over the past two years. In Delaware, Reporters Committee attorneys submitted Friends of the Court briefs in two different courts in support of Vox Media after a tech entrepreneur sued the news agency for allegedly defamatory articles that were linked by hyperlinks in a later article. In March, the Delaware Supreme Court upheld a lower court ruling in favor of Vox, ruling that the plaintiff’s claims were time-barred and the hyperlinked article did not repost the original stories.
In another case, the Committee of Journalists submitted a friend of the court brief in support of several news outlets that were prosecuted for articles they published about a graduate student’s dinner. Russian origin with General Michael Flynn, then director of defense intelligence. Agency. While a district court dismissed the complaints arising from the allegedly defamatory articles because they had been filed after the expiration of the one-year limitation period, the student appealed to the State Court of Appeals. United for the Fourth Circuit, arguing that the links and social media posts essentially reposted previous stories, extending the filing deadline she previously missed.
The Reporters Committee’s amicus brief challenged the complainant’s republication theory and highlighted the negative impact a ruling in her favor would have on the media’s ability to do their job.
“Basically,” the lawyers for the Reporters Committee wrote, “the Internet is a richer information environment, especially for journalism, when articles include hyperlinks.”
On April 15, 2021, the Fourth Circuit upheld the district court’s rejection of Lokhova’s claims, rejecting the argument that the hyperlinks (or tweets from third parties) reported by Lokhova amounted to a repost.
The Committee of Rapporteurs regularly tables friend of the court briefs and his lawyers represent journalists and media outlets pro bono in court cases involving First Amendment freedoms, journalists’ information collection rights and access to public information. Stay informed of our work by subscription to our monthly newsletter and follow us on twitter or Instagram.