Many members of the public believe the internet is subject to a completely different set of laws when it comes to defamation. Fortunately, sanity (mostly) continues to reign when courts apply REAL laws to newfangled message delivery systems. There are exceptions, of course. An Australian court recently declared Google to be the “publisher” of defamatory content posted by other people at other websites, but returned in search results. A Canadian court found a blogger personally liable for republishing defamatory statements made by others.
Fortunately, very few courts have found simply linking to defamatory content to be an act of defamation. In fact, the exception to the rule was, of all things, a bankruptcy court, which decided sending someone an email with links to defamatory content could be considered defamation.
Eric Goldman has the details on yet another case to add to the “linking ≠ defamation” body of caselaw.
Another court has ruled that linking to defamatory content isn’t a defamatory republication of the content. I just blogged on a similar result in Life Designs Ranch, Inc. v. Sommer. The only twist here is that the person posted the link to Facebook and then “liked” their own post. Putting aside the social faux pas of liking your own post, the “liking” does not affect the defamation analysis.
That’s the crux of the lawsuit, as far as it pertains to social media platforms and their encouragement of “sharing” possibly defamatory content. (And, I guess, baby pictures and Minion-featuring quasi-memes…) The defendant’s self-fist-bump of “liking” her own status update didn’t suddenly turn the posted material from “just a thing I’m throwing out there” to “defamatory content I heartily endorse.”
There appears to have been several issues with the defamation claims made by the plaintiffs, including naming additional defendants after the statute of limitations had expired and a failed argument that one of the plaintiffs was a “private citizen,” despite the allegedly defamatory material clearly discussing his former position as an elected official.
[I]n view of his unquestionably public role in the relevant community of Emmaus, Slozer must also be deemed a public figure for purposes of a defamation analysis in the circumstance at issue in this case. This conclusion is further compelled by the fact that the statements at issue here are directly connected to, and concerned with, criticisms of Slozer’s record in his elected position in Emmaus municipal government. Although it cannot be said that one categorically renounces a private life in all respects upon taking public office, it is but a truism to acknowledge that public actions by a public servant remain of legitimate public concern even after an official leaves office. And where such an official continues to participate vocally in public affairs, he may not so easily dissociate himself from his role as a “public figure.” On the present facts, there is, therefore, no question that in the relevant community of Emmaus, Plaintiff Slozer maintained the status of public figure during the 2011 campaign season for the purposes of defamation law.
And, while the court did find that the linking (and “liking”) was not defamatory, it also found the original content to be merely statements of opinion, rather than libelous.
Although hardly a lofty exposition of the issues evidently at the forefront of the campaign — much less a shining example of political pamphleteering worthy of the heritage bestowed by Paine and his erudite cohort of Founding Fathers — the statements about Donches and Slozer are nevertheless not capable of defamatory meaning as a matter of law. Properly viewed in the context in which they appear, the references to Donches’ and Slozer’s psychological traits would fairly be received by the intended audience as nothing more than opinionated assessments of a political opponent’s character and motivation.
Finally, the linking itself:
We also conclude that Appellee Holzhafer’s posting a link to the allegedly defamatory website with a “like” designation on her Facebook page, is not a republication of the content of the website sufficient to support a separate cause of action for defamation against her.
Side note: as someone who was recently referred to as “Tim Cushings” and “Tim Lushing” by Patrick Zarrelli and the Ft. Lauderdale police officer who had the misfortune of fielding the reputation mismanagement superstar’s decidedly non-criminal “criminal complaint,” I feel for the defendant whose linking/ liking was just officially declared non-defamatory. [Truth be told, Techdirt contributor Tim “Darknight” Geithner and site founder Mike Reznick don’t exactly have it easy, either.]
This footnote appears on the first page of the opinion:
Ms. Holtzhafer noted in her motion for summary judgment that her name had been misspelled as “Holzhafer” throughout the proceedings. Because the rest of the record retains the “Holzhafer” spelling, we have done the same for the sake of consistency.