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Media Law

Defamation by Hyperlink

By Darryl Broderick and Ciaran Cronnin

08 November, 2019

 

Introduction

Defamation by means of hyperlink may be a relatively new concept, however the importance of this topic has grown exponentially due to the manner in which we interact with the internet today. Can sharing a link to defamatory material on your social media pages expose you to defamation proceedings? At the time of writing, there is no Irish case law that has dealt with the issue of defamation by means of hyperlink. However, case law in other jurisdictions potentially sheds light on the approach an Irish court may take when cases of this kind present themselves in this jurisdiction.

 

Recent Decision in Australia

The recent decision in Bailey v Bottrill (No 2) [2019] is an example where an individual was found liable for defamation by means of hyperlink however, with a particular set of facts. In this case, the appellant had shared a link to a defamatory YouTube video and associated text on their Facebook page.  It imputed that the respondent was a member of a paedophile group, who used his employment to facilitate paedophilic activities. The appellant argued that she had made no contribution to the content of the hyperlink and associated text and that her role in sharing the hyperlink was merely “passive”.  The Court however, likened the appellant’s Facebook page to a personal “noticeboard” and held that the appellant had “facilitated direct access to the defamatory material”. Despite the fact that the appellant made no contribution to the content of the hyperlink, the combination of the hyperlink and the associated text appearing on her personal page according to the court ‘bespeaks a willingness on the appellant’s part to transport the enticed searcher immediately to the relevant web page on YouTube for more information’. This was deemed to constitute publication of the defamatory content for which the appellant was liable. Damages of AUD $18,880 were upheld.

 

Development of the Law

The law surrounding defamation by means of hyperlink can be traced back primarily to the Canadian case of Crookes v Newton [2010].  In this case, heard by the Canadian Supreme Court, it was held that a hyperlink could never be considered defamatory material. Newton, the defendant was the owner and operator of a website that published articles on various political issues. Newton published an article on his website which contained hyperlinks to material that the claimant alleged was defamatory in nature. The hyperlinks linked to content on websites produced independently; Newton had made no contribution to the material.  The majority of the judges held that hyperlinks could be comparable to footnotes in that they are mere references; therefore, they could not be considered publication.  However, if the defamatory material from the hyperlinks were to be repeated by Newton in his article, that would constitute publication.

However, the case law surrounding defamation by hyperlink has developed since Crookes in 2011.  The case of Magyar Jeti Zrt v Hungary, heard by the ECtHR in 2018 is considered a landmark judgment for freedom of expression online. The case concerned Magyar Jeti ZRT, a Hungarian media company, and the operator of a popular online news portal, 444.hu. In September 2013, a journalist published an article on the website detailing an incident involving football fans who chanted racist slogans and threatened Roma children. The article included a hyperlink to a Youtube video with a Roma leader who said that the fans were members of Jobbik, a far-right Hungarian party known for its anti-Roma acts. Jobbik sued the Roma leader and Magyar Jeti for defamation.  The Court noted that the Internet played an important role in the enhancement of the right to freedom of expression and information, but it also posed a higher risk of harm to some human rights, including the right to the respect of private life, as compared to traditional media. The case of Delfi v. Estonia was referenced, in which it was stated that because of the particular nature of the Internet, the “duties and responsibilities” of Internet news portals may differ from those of a traditional publisher. The Court noted that hyperlinks were a fundamental component of the Internet by making information accessible through linking sources.

It was also was noted that hyperlinks and traditional acts of publication could be distinguished from each other since hyperlinks do not present the linked statements to the audience or communicate its content, but only serve to bring readers’ attention to content on other websites. In addition, the individual who hyperlinked the content may not control the website that hosted said content and the content in itself may be changed after the publication of a hyperlink. The European Court reasoned that given these qualities of hyperlinks, it was improper to apply a strict liability standard to a media company for hyperlinking defamatory content.

The Court concluded that such cases must be assessed on an individual basis. The Court listed five factors to consider when assessing the liability of Magyar Jeti:

  1. Did the journalist endorse the impugned content?
  2. Did the journalist repeat the impugned content (without endorsing it)?
  3. Did the journalist merely put a hyperlink to the impugned content (without endorsing or repeating it)?
  4. Did the journalist know or could reasonably have known that the impugned content was defamatory or otherwise unlawful?
  5. Did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism?

In this case, the article published on 444.hu simply mentioned the Roma leader’s interview and linked to it, without any endorsement, disapproval, comment on or repetition of its contents. Of course, a journalist could be held liable for hyperlinking content in situations where s/he did not act in “accordance with the ethics of journalism and with the diligence expected in responsible journalism dealing with a matter of public interest.” The Court noted that it was irrelevant if Magyar Jeti knew or could have reasonably known that the hyperlink provided access to defamatory or otherwise unlawful content and that Magyar Jeti’s journalists could not have reasonably assumed that the content of the hyperlinked video, although perhaps controversial, did not qualify as permissible criticism of political parties. Therefore, Magyar Jeti were not liable for defamation by means of hyperlink.

 

Possible Direction?

Case law surrounding this topic in the UK is also scarce.  However, the case of Ali v Associated Newspapers LTD [2010] offers some insight into how a case revolving around defamation by means of hyperlink would be approached by the English Courts.  In this case, the Plaintiff argued that he had been defamed in a blog. An issue arose as to whether a newspaper article to which the blog contained a hyperlink formed part of the blog. Eady J. observed as follows:

“One point that was briefly addressed in the course of submissions was that of the hyperlink. It was said that it is so far undecided in the authorities whether, as a matter of generality, any material to which attention is drawn in a blog by this means should be taken to be incorporated as part of the blog itself. I suspect that a general rule of thumb is unlikely to be adopted. Much will depend on the circumstances of the particular case.”

This judgment suggests that the approach taken in Crookes would more than likely not be followed in the English Courts. This brief treatment by Eady J. of the submissions on the point suggests a reluctance to create a general rule concerning liability for hyperlinks, instead favouring judging a case from its particular set of facts. This, together with the English case law analysed by Deschamps J in her dissent in Crookes, suggests that the approach taken by the English courts is likely to be more incremental.

 

Potential Issues

The provisions in s.38 and s.11 of the Defamation Act 2009 raise additional issues in respect of online publication. Section 11 provides for a variant of the single publication rule whereby a person is liable only for one instance of publication. Section 38 provides that the limitation period for a defamatory statement made online runs from the date on which the statement is first made accessible online. While the court may extend the time period to two years, the continued building of web archives means that the material may well be accessible at a later stage. This is important as online content can be posted and remain relatively obscure for vast periods until it may be spread by online users. The interaction of these statutory provisions has obvious implications for the defamed person whose reputation is destroyed when an obscure source becomes ubiquitous a year later.

The single publication rule potentially operates so as to absolve a defendant who creates the original webpage containing the defamatory statement and later links to it, whether through the same site or otherwise. Even if the creation of the hyperlink itself constitutes publication, the defendant could escape liability on the basis that the limitation period started running from the date of the first online posting of the material. There is, however, a discretion vested in the court that ‘may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require’. That suggests that there may be some leeway to allow an action in respect of a second publication (by hyperlink or otherwise) even though the time period has run in respect of the first publication.

However, if posting a hyperlink to defamatory material is found not to constitute publication, s.11 and s.38 may in fact leave a plaintiff without any means to receive a remedy for the damage to their reputation. The plaintiff will not be able to sue the original publisher of the material as the limitation period will have run out.  Furthermore, an aggrieved plaintiff will not be able to sue the third-party individual who posted the hyperlink as this individual will have not have “published” the material of the link.

Taking this into account, it is clear that the law has to develop further with regards to the issue of defamation by means of hyperlink. It is up for debate as to which approach the Irish Courts may take with this issue, but they are more likely to follow the English approach of deciding a case on its particular facts.  However, regardless of what route the courts decide to take, the surest way to avoid liability for a hyperlink, is to not post them at all.

 

For more information on the content of this insight contact:  

Darryl Broderick, Partner | E darryl.broderick@rdj.ie | T +353 21 4802767

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