TALLAHASSEE – Donna Eng, Roy E. Fitzgerald III and Gregory S. Weiss recently published an article in the May 2016 issue of the Florida Bar Journal that addressed online defamation and whether or not the rules need to be revisited with regards to hyperlinks that lead to defamatory and libelous information.
“Because no Florida appellate court has squarely addressed this issue, this article summarizes how other federal and state courts have ruled,” they wrote.
Furthermore, the article explained that Florida trade libel and defamation claims must require a falsehood and be published or communicated to a third person, especially if the falsehood plays a material and substantial part in convincing others not to deal with the person, thus doing direct and intentional harm.
“The single publication rule advances the statute of limitations’ policy…that defamation suits are brought within a specific time after the initial publication. Websites are constantly linked and updated,” they quoted from a ruling form the U.S. Court of Appeals for the 3rd Circuit. “If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated. A publisher would remain subject to suit for statements made many years prior, and ultimately could be sued repeatedly for a single tortious act the prohibition of which was the genesis of the single publication rule.”
Eng, Fitzgerald and Weiss explained that they searched for multiple cases from other states to see what decisions were being made, and discovered similar reactions, mainly that republication must at least involve an “affirmative act.”
The authors further explained that there are certain actions that eliminate issues of republication, such as a third-party linking information to a website. When information is so fluid between users and those who host certain websites, they cannot always monitor every link that is inserted to determine credibility.
“In September 2015, a court in Delaware observed that hyperlinking alone does not constitute republication of defamatory material, and in November 2015, a Pennsylvania court held that the act of posting a link to an allegedly defamatory website with a ‘like’ designation on a Facebook page does not constitute republication to support a cause of action for defamation,” they wrote.
The authors conclude that when dealing with republication, it is tricky to determine when defamation and libel are intentional to a specific party.
“At present, no reported decision from a Florida state court has addressed whether a hyperlink can serve as the basis for a defamation or trade libel claim under Florida law,” they said. “However, the overwhelming majority position in other jurisdictions appears to be that so long as the hyperlink merely references the reader to a previously published article, and does not restate the original contents, alter the allegedly defamatory information, or present the allegedly defamatory information to a new audience, a defamation action predicated thereupon will fail as a matter of law.”