Internet Defamation Law Blog

May a Website That Provides a Link to an Article be Liable for Defamation Based on the Article’s Content?

Can you hyperlink yourself into a lawsuit? Do you need to fact check every article you reference in an Internet posting?

In In re Philadelphia Newspapers v. Vahan H. Gureghian. 11-3257, 2012 WL 3038578 (3d Cir. July 26, 2012), the Philadelphia Inquirer (“Defendant”) wrote an online column about the Plaintiff that included links to a website. The website contained alleged defamatory material about the Plaintiff. Defendant did not author the alleged defamatory material, which was published more than a year ago. Plaintiff sued Defendant for defamation because Defendant provided those links within his column.

In an attempt to avoid tolling the 1-year statute of limitations (“Statute of Limitations”) that applies to defamation claims, Plaintiff argued that the links amounted to republication. The reason is that republication of a defamatory statement can begin a new Statute of Limitations. As a result, a violation of the original Statute of Limitations would not have barred Plaintiff from filing suit against the Defendant.  

In its analysis, the Court considered two important legal doctrines: the “single publication rule” and the “doctrine of republication.”   

Single Publication Rule

For a plaintiff to succeed in a defamation suit, the defendant must have published the defamatory material. Under the “single publication rule” a defendant is considered to have published the material only if he or she is the original publisher. The “single publication rule” enables only the original printing of the defamatory material – and not the circulation of the material –  to trigger the Statute of Limitations. Otherwise, the Statute of Limitations would start over every time one re-circulated defamatory material.  This could result in an effectively meaningless Statute of Limitations because it would potentially never end.

Doctrine of Republication

The “single publication rule” is limited by the “doctrine of republication.” The “doctrine of republication” states that “republishing” material will restart the Statute of Limitations. This raises the important question: when does a “republishing” occur? The Court analyzed this issue as follows:

An exception to the single publication rule is the doctrine of republication. Republishing material (for example, the second edition of a book), editing and reissuing material, or placing it in a new form that includes the allegedly defamatory material, resets the statute of limitations. Restatement (Second) of Torts § 577(A); Davis v. Mitan (In re Davis), 347 B.R. 607, 611 (W.D. Ky. 2006). Traditional principles of republication thus require the retransmission of the allegedly defamatory material itself for the doctrine to apply. However, courts addressing the doctrine in the context of Internet publications generally distinguish between linking, adding unrelated content, or making technical changes to an already published website (which they hold is not republication), and adding substantive material related to the allegedly defamatory material to an already published website (which they hold is republication). See Davis, 347 B.R. at 611-12.

Additionally, the Court cited Salyer v. Southern Poverty Law Center Inc., which held that a link is not a republication under similar facts. Salyer v. Southern Poverty Law Center Inc., 701 F.Supp.2d 912 (W.D.Ky.2009).  In Salyer, the defendant provided links to defamatory material and referenced that material several times in articles posted on its website. The Salyer court explained that, although a link calls attention to defamatory material, it does not present the defamatory material. A link is simply a means for accessing the referenced article, it is not a republication. Therefore the Salyer court held that the posting of links did not amount to republication.

In accordance with the Salyer precedent, the Philadelphia Newspapers Court held that links do not amount to republication. Therefore Plaintiff was barred by the Statute of Limitations from proceeding against the Defendant for defamation. The Court expressed the concern that, if it were to hold otherwise, the Statute of Limitations could be triggered endlessly because websites are constantly linked and updated. Allowing each link or technical change to restart the Statute of Limitations would effectively eliminate the Statute of Limitations.

The take away from this analysis is that under certain limited circumstances, linking or referencing defamatory material that you did not write may be grounds to restart the Statute of Limitations. While there are facts in which that will not be the case, it is wise to avoid linking to web pages contain defamatory statements, regardless of how long ago the statement was made.

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Todays post

In that case, Defendant appealed the Law Division’s decision to grant the attorney fee award to Plaintiff.  The award was granted after Defendant repeatedly failed to comply with deadlines set in numerous motions enforcing a prior settlement between the Parties.  Originally, Plaintiffs commenced a lawsuit against Defendant and their neighbor, seeking damages for alleged property damage and trespass.  Ultimately, the litigation settled. Under the terms of the settlement, Plaintiffs were responsible for conveying a piece of their property to Defendant. 

GDNLAW POST 2013

Teating

New York Assembly Seeks to Restrict Anonymous Free Speech on the Internet

The New York State Assembly has proposed a law that would make sweeping changes to how people communicate on the Internet.  The Bill called the “Internet Protection Act” A:8688 /S.6779 would require the following:

A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

Clearly, this would create profound problems for civil libertarians and others who believe that people should be allowed to post their views anonymously.  In fact, it might be unconstitutional, to the extent that a court would find that it violates the principle that anonymous free speech are matters of public concern is protected by the First Amendment.

Specifically, in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the United States Supreme Court stated:

Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society

Id.at357.    

People who post on websites, as well as webmasters, should follow this development to see if the law ultimately is signed by the Governor, and if so, whether it starts a nationwide trend.

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Will the Request for a Poster’s Real Name When Logging Onto YouTube Begin to Remedy the Problem of Internet Defamation?

YouTube is aware that its user anonymity allows for an array of hurtful, judgmental, sexist and racist trolls. The site is now attempting to make users more accountable for their posts and prompting commenters to use their real names when logging in. 

This policy change was initiated on June 29, 2012, and gives users the option of using a pseudonym or their real name.  However, this is not a mandatory policy, as users can simply elect not to switch to their real name or simply maintain their YouTube handle.  If a user decides to remain anonymous by clicking a button saying “I don’t want to use my full name,” that user will be directed to a dialogue box that asks them to explain why they do not want to display their real name.  Among the options a user can select for their explanation is “My channel is for personal use but I cannot use my real name,” or “I’m not sure, I’ll decide later.”

Even if a user decides to keep their pseudonym when initially prompted, the site allows users to change their settings at any time if it is eventually decided that they want to use their full name.  However, it is not clear whether new users will have the option of using a pseudonym or if they will be forced to use their real names when registering.

This new policy is part of Google’s (which owns YouTube) attempt at improving Internet posting.  

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Does New Jersey Recognize the Presumed Damages Doctrine in Internet Defamation Claims?

In W.J.A. v. D.A., No. A-77-10 (May 16, 2012), the New Jersey Supreme Court addressed the question of whether the doctrine of presumed damages applies over the Internet.

That case surrounds Wayne Anderson (“Wayne”), a New Jersey man who was cleared of sexual abuse charges against his nephew, David Adams (“David”) (both fictitious names created by the Court).  Wayne was awarded $50,000.00 for defamation in the original suit, and nine years later David created a website that repeated the abuse claims with additional charges.  The site included Wayne’s name and address. 

The creation of the website initiated the current case. However, because Wayne could only offer anguish and emotional injury as damages, the Law Division judge found those damages subjective and therefore insufficient to sustain a defamation claim. David was granted summary judgment.  However, the Appellate Division reversed, holding that Wayne could recover damages in a defamation suit without proving actual harm.  This is known as the “Presumed Damages Doctrine,” whereby a claimant may recover nominal damages expected when his reputation has been injured.  Reputational damage is often hard to prove, so under certain circumstances, it may be presumed, but the damages are generally nominal.

In that case, the Supreme Court held that the presumed damages doctrine would be recognized.  The judge noted that the doctrine acts as a procedural device to help the plaintiff’s claim survive dismissal.  Addressing the fact that the damages would be nominal, the Supreme Court noted that vindication is an important piece of any defamation claim and the doctrine acts as a tool by which the plaintiff is provided dignitary recourse. 

Because the damages are presumed, it is hard for a jury to devise a uniform method of valuation.  That is why a plaintiff can only obtain nominal damages at trial, thereby precluding compensatory damages absent proof of actual harm.  Of course, the Plaintiff is free to seek to prove actual damages, which one would hope would be greater.  However, that is often not possible.

This case is important because it illustrates that New Jersey will recognize the doctrine of presumed damages, but recovery under the doctrine is limited.  The doctrine is a good tool for a plaintiff to use to defeat dismissal and obtain nominal damages when he cannot show actual harm.  This is generally the scenario in Internet defamation cases, in which the reputational harm that can be caused is extremely hard to measure.

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When Is Substantial Truth an Adequate Defense to Defamation?

In a 1964 decision, the Supreme Court established that truth is an absolute defense against defamation. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). However, for parties involved in defamation suits, it is similarly important to know about the affirmative defense of substantial truth.

In a recent case, a Texas Court of Appeals found in favor of defendants who had posted a critical review of the plaintiff’s product online. David Rafes, Inc. v. Huml, 2009 Tex. App. (1st Dist. Oct. 29, 2009). In the suit, David Rafes alleged that Michael Huml and Slowboy Racing, Inc. published defamatory statements about Rafes’ business, Turbochargers.com. The allegedly defamatory statements included Huml claiming that Rafe’s turbocharger was a “poorly manufactured turbo from China” that would “inevitably fail in a short amount of time” and that it was a “Chinese version us[ing] an inferior stainless in its composition.” Id. at 2. Among several defenses asserted by the defendants was that their statements were substantially true.

In order to bring a cause of action for defamation, a plaintiff must establish that the defendant:

1. published a statement about the plaintiff
2. that was defamatory
3. while acting with either actual intent or reckless disregard, i.e. malice (if the plaintiff was a public  official or public figure) or negligence (if the plaintiff was a private individual) regarding the truth of the statement

Id. at 13.

Generally, a defendant can defeat a libel claim by establishing that the published statement on which the action for libel is based is a true statement. Additionally, a defendant can defeat a libel claim by establishing that the statement at issue is substantially true. The Court explained that in order “[t]o determine if a publication is substantially true, we consider

1. whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
2. than a truthful statement would have been, and
3. [w]e look at the ‘gist’ of the publication to determine whether it is substantially true.”

Id. at 14.

The substantial truth standard has also been referred to as the “gist” test because, under this approach, only the “gist” of the statement in question must be true in order for the statement to be protected. As the Court explained, “[t]he defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient.” Id. This doctrine protects certain false statements so long as any inaccuracies do not materially alter the dissemination of otherwise truthful speech.

The Huml Court decided in favor of the defendants, finding that the trial court had heard sufficient evidence to conclude that the plaintiff’s turbocharger was, as it concluded, a “bad product” and that the evidence “substantiat[ed] the ‘gist’ of the statements contained in the internet article regarding the production and manufacturing of the turbocharger.” Id.

The substantial truth defense is significant in that it provides defendants with a less stringent – and potentially less expensive – way to combat a libel suit. If a defendant can show that the statement at issue is substantially true, it will hopefully be possible under the right circumstances for the defendant to have a motion for summary judgment granted (which will allow the case to be disposed of without going to trial). The doctrine is also important for libel plaintiffs because it notifies them that statements that criticize them need not be entirely true in order to be protected.

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What is the current legal status of Europe’s “right to be forgotten” doctrine as it relates to Internet Defamation?

A Spanish court recently asked Internet-search provider Google to remove data about a private individual from its index.  Spain and other members of the European Union made this request under a doctrine that is commonly referred to in Europe as “the right to be forgotten.”

In 1991, a Spanish newspaper published a critical profile of Spanish plastic surgeon, Dr. Hugo Guidotti Russo.  The article referenced a dispute Dr. Russo had with a patient, but failed to mention how meritorious the claims were or how the dispute was ultimately resolved.  According to Dr. Russo’s attorney, the lawsuit was dropped once Dr. Russo was cleared, but no media covered that aspect of the case so it never appeared on the Internet.  Dr. Russo is still a practicing plastic surgeon in Spain and when potential patients use Google to search for him, the critical article regularly appears on page one of the search results.  Dr. Russo believed that the article was harming his ability to attract patients and, with the support of a Spanish court and the Spanish Data Protection Authority (“SDPA”), asked Google to remove the article from its index.

Google refused to remove the article claiming that the Spanish regulators exceeded their authority and that their directive was equivalent to censorship.  The important issue raised was how much control private individuals should have over the information about them that appears on the Internet.  Currently, there is a groundswell of support in Europe for the “right to be forgotten” movement such that it may be codified as law.  The SDPA has previously ruled that freedom-of-expression laws in Spain protect only newspapers and other publications and do not protect search engines.

Other examples of private individuals seeking to “be forgotten” in Spain include:

A high school principal whose citation for urinating in public was published by an official regional government gazette and may still be seen by students and parents alike via a Google search. 

A prison guard concerned that a job-related sanction that appeared in Google search results might lead criminals to determine where he works.  Spanish police and prison guards are often granted anonymity due to fears that they might be identified, located, and targeted by the armed Basque separatist group ETA. 

An individual accused of homicide forty years prior but acquitted due to mental illness.  A Google search performed forty years later reveals news of the accusation, but no news of his acquittal or the mental illness that justified the acquittal.

Google’s response is that Spain should require the publications that make the material available via the Internet to embed coding that would tell search engines not to index the information.  Privacy experts agree that requiring Google to remove information from its index could have a profound chilling effect on free expression.  Advocates of the “right to be forgotten” rules counter that users of the Internet should have a right to be forgotten when the data is no longer needed or when an affected individual requests that the data be removed.  The legislation being considered by the European Union would focus mainly on data, photos and, videos that individuals post of themselves on sites such as Facebook and Twitter, that the individuals may later want removed.

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May statements made in the course of an ongoing fraud investigation be defamatory?

On April 7, 2011, the First Department of New York’s Appellate Division upheld a trial court’s dismissal of a lawsuit for defamation.  Akpinar v. Moran, 2011 WL 1311902 (1^st Dept. 2011).  The plaintiff, Reverend Dr. Bill Akpinar, sued attorney William Moran; Moran’s law firm; and the firm’s client, Wachovia Mortgage, FSB (“Wachovia”) for defamation.  Akpinar alleged that Moran defamed him in a newspaper article about a pending criminal investigation into a mortgage fraud and a lawsuit brought against Akpinar by Wachovia alleging mortgage fraud.

When referring to Akpinar, Moran told the newspaper, “I’m looking forward to getting him under oath” and “I want to get to the bottom of many questions myself.”  Id.  Akpinar argued that when considered in the context under which the statements were made, they amounted to defamation.  Akpinar claimed “that he lost $17 million in venture funding from unspecified individuals who read the [defamatory] statements.”  Id. 

The Appellate Division dismissed Akpinar’s complaint, holding that “a reasonable reader would understand the statements defendant made about plaintiff as mere allegations to be investigated rather than as facts.”  Id.  (Emphasis in original).  The court reasoned that “the statements neither impute to him the commission of a serious crime nor tend to injure him in his trade, occupation or profession, and therefore do not constitute slander per se.”  Id.  Neither Akpinar’s reference to the pending criminal investigation nor the civil lawsuit were sufficient to establish a claim for “defamation by innuendo” – whether the statements are defamatory requires a balancing between the alleged defamatory words and the facts and circumstances that surround their publication.

The court also found Akpinar’s allegation that he lost “$17 million in venture funding from unspecified individuals” inadequate to plead special damages as required in a defamation action.  Id.  Finally, the court noted that Moran’s statements were protected under Civil Rights Law §74 as a “fair and true report of a judicial proceeding.”  Id.  The court similarly dismissed Akpinar’s claim for intentional infliction of emotional distress as duplicative of his defamation claim and on the ground that Moran’s statements were “not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”  Id.  Thus, the court upheld the decision of the trial court dismissing Akpinar’s lawsuit in its entirety.

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What is the standard for a private person to sue a public official for defamation?

The Second Circuit of the United States Court of Appeals recently dismissed a defamation lawsuit brought by a private citizen against the mayor of Yonkers, New York.  Zherka v. Amicone, 2011 WL 710462 (2d Cir. 2011).

Selim Zherka, a citizen of Westchester County, New York, publishes the Westchester Guardian, a weekly local newspaper.  In 2007, the Guardian was highly critical of Philip Amicone, the Mayor of Yonkers, accusing him and his administration of corruption, fiscal mismanagement and police brutality.  Zherka claimed in his lawsuit that Amicone retaliated against him for making those accusations by publicly defaming him at a campaign event.  According to Zherka, Amicone called him a “convicted drug dealer,” an “Albanian monster” and a “thug.”  Amicone also said that Zherka would open “drug dens” and “strip clubs” throughout Yonkers and “loot” the “pension funds” of Yonkers’s residents if Amicone was not re-elected Mayor of Yonkers.

Zherka sued Amicone in the United States District Court for the Southern District of New York for violation of his First Amendment rights and per se defamation under New York common law.  Amicone admitted being present at the campaign event, but denied making any of the statements.  Amicone moved to dismiss Zherka’s lawsuit for failure to state a claim upon which relief could be granted.  The District Court granted Amicone’s motion and dismissed Zherka’s First Amendment claim with prejudice and dismissed his defamation claim under New York common law without prejudice.  Zherka appealed that decision to the Court of Appeals.

The Court of Appeals affirmed the District Court’s ruling and upheld the dismissal of Zherka’s First Amendment claim and his common law defamation claim.  The Court reasoned that Zherka could not establish that Amicone’s retaliatory comments “chilled” his speech in any way – that is, that they caused Zherka to refrain from speaking – which is required to establish a First Amendment violation under 42 U.S.C.A. §1983.  Id. at *2. 

Zherka argued that the injury presumed as a result of his claim of per se defamation under New York common law was sufficient to establish an injury under §1983.  The Court disagreed, reasoning that Zherka’s alleged injury under New York common law was insufficient to serve as a substitute for the actual “chilling” of speech.  In fact, the Court found that Amicone’s comments seemed to influence Zherka to speak, rather than chill his speech.  For example, following Amicone’s comments Zherka published articles critical of Amicone with headlines such as “Mayor Amicone Stumbles Over the First Amendment,” “Dumb, Dumber and Dumbest,” and “Scrooge Amicone-Rapes Taxpayers; Rewards Cronies.”  Id. at *2. 

Thus, the Court held that Zherka could not establish an injury sufficient to prove a violation of §1983.  In conclusion, the Court stated:

Retaliatory insults or accusations may wound one’s soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.

The arena of political discourse can at time be rough and tough.  Public officials must expect that their decisions will be subjected to withering scrutiny from the populace.  A public official’s response to that criticism is subject to limits, but the injury inflicted by that response must be real.  Without that limitation, the Constitution would change from the guarantor of free speech to the silencer of public debate.

Id. at *3.

Download Zherka v. Amicone, 2011 WL 710462 (2d Cir. 2011)

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