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John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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Be Careful Sharing Sweet Little Lies Online

Tuesday, February 16th, 2016

You find juicy dirt online and want to share it with your cyber friends. But the gossip turns out to be false and defamatory. Can you be held liable for posting or emailing a link to it?

Recent court cases make it unlikely that you commit defamation just by passing on a link to the false dirt. But there are reasons to be careful and things you can do to protect yourself.

In a Pennsylvania case, a blog allegedly defamed a political candidate by making claims of theft, road rage and mental illness. Someone posted a link to that blog post on Facebook and then liked his own Facebook post. The candidate sued the Facebook poster for republishing defamatory material.

In a Connecticut case, a CNBC editor posted a link on the CNBC website to an allegedly defamatory article about the actions of a hedge fund manager. The CNBC editor did so in an article he called “The Sex and Money Scandal Rocking Hedge Fund Land.” The editor added the comment that the author of the linked, allegedly defamatory article was a “veteran financial reporter” who “knows her way around the Connecticut hedge fund beat.”

In a case from Washington State, an angry father attacked online a substance abuse rehabilitation center that had treated his son. (The dad thought the rehab center had ripped him off financially.) The mad dad created a website mocking the rehab center and posted a link on his site to “more info” on the website of another organization, where allegedly false claims were made: that the rehab center operated like a cult, it used illegal labor, and a staff member worked at another camp where a boy died.

In each of these cases, the trial court threw out the defamation claim against the linker and the appellate court affirmed. Each case held that posting a link to purportedly defamatory material doesn’t make the poster also liable for defamation.

Note that, in these cases, the posters went farther than just posting links. One liked his own Facebook post, which provided the link. Another implicitly vouched for the credibility of the author of the linked, supposedly defamatory post. Yet another said the link provided “more info” about a situation.

Two of these cases held that such linking and side comments didn’t amount to a republication of the defamation, which might have made the linker also liable for defamation. Another case held that a federal statute, the Communications Decency Act, shields you from liability for posting such links, even if you add some side comments that aren’t independently defamatory.

Indeed, a case from a couple of years ago shows how you might use linking to shield yourself from a defamation claim – by using linked material as your basis. A disgruntled former employee claimed on a website that Sheldon Adelson, owner of some gambling resorts, had personally approved the provision of prostitution services at a casino in Macau.

Adelson sued the former employee for defamation. The former employee escaped liability because he backed up his prostitution claim by linking to an AP story in which the allegation was reported. That linking of a source exonerated the former employee even though the AP report may have been mistaken.

So, what lessons can an Internet gossip take from these cases?

Most importantly, don’t get careless. It’s not the linking that will get you, it’s what you write. If you elaborate on what you link, don’t write something that’s independently defamatory.

It’s hard to say when additional comments cross the line. While the linkers got off in the cases above, the CNBC case might have gone the other way due to the endorsement that accompanied the link.

Next, if you must comment, couch your comment as opinion, not fact. And don’t phrase your opinion as fact. Saying, “in my opinion, Joe beats his dog too much” (if, in fact, Joe doesn’t beat his dog) is probably defamatory, but “in my opinion, Joe is too hard on his dog” is probably protected opinion.

If you can’t resist passing along the dirt, provide a link to the dirt rather than restating it or block quoting it.

Also realize that you aren’t insulated from defamation by posting dirt in a private online setting. Publishing false and harmful information online to even a few friends can be defamation, such as by email, on a private message board, or in a closed social media group.

The best way to stay out of court is to exercise restraint and good judgment. It isn’t fun, but be the mature adult in the conversation. If you think the dirt may not be true, don’t spread it and don’t comment on it. If you want to say something critical, sleep on it first. Abstain from posting after drinking.

Gossip is fun. Being sued isn’t. Be prudent out there.

Written on December 15, 2015

by John B. Farmer

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