If someone publishes something defamatory on the internet, and I later re-publish that statement, generally I can be held liable for defamation equally as the original publisher of the defamatory statement. (See for example, http://www.wassom.com/publication-republication-and-defamation-online-guest-post.html.)
So, for example, if I publish on my blog an unvarnished, clearly libelous statement – oh, I don’t know, say I write something like “Sheldon Adelson (the casino magnate and Republican party contributor) runs a prostitution ring in Macau” – and then my friend (let’s call him “Phil”) repeats that statement on his blog, then typically both Phil and I can be liable for defamation.
Well, the above does assume that the statement isn’t true, since truth is a defense to defamation.
I have no idea if that statement is or is not true, but I do know that accusations to that effect were made in a lawsuit by a former CEO of one of Mr. Adelson’s casinos and that those same accusations were indeed published in an Associated Press story which was then picked up and republished by the Huffington Post.
And then … the National Jewish Democratic Council (NJDC) published this statement on its website, together with a link to the Huff Post story:
this week, reports surfaced that in addition to his anti-union and allegedly corrupt business practices, Adelson ‘personally approved’ of prostitution in his Macau casinos
NJDC, together with its principals, was then sued for defamation by Adelson in federal court in New York City. The court dismissed Adelson’s suit in a ruling last September, Adelson v. Harris, 2013 WL 5420973 (S.D.N.Y. Sept. 30, 2013).
Eric Goldman recently commented about all of this in his blog, wherein Professor Goldman also republished the offending statement. (These things do tend to get around, although Goldman’s mention was obviously fair use commentary – mine too. Right? I mean, it has to be, right?) Ok, assuming the statement is in fact untrue, what then – typically – happens if someone re-publishes the statement? First, didn’t the Associated Press republish the statement? Well, not exactly.
Here’s what the AP published:
In documents revealed Thursday – including a sworn seven-page declaration that [Adelson’s casino’s former CEO] Jacobs submitted along with a summary from his attorneys of problems obtaining documents from [the casino for which he worked] – [the former CEO] describes an effort he launched after arriving in Macau in May 2009 to rid the casino floor of “loan sharks and prostitution.”
“This project was met with concern as (company) senior executives informed me that the prior prostitution strategy had been personally approved by Adelson,” [the former CEO] said in the documents.
First regarding the AP. The AP quoted from court documents, a right for journalists and news reporting organizations often referred to as a privilege of “fair comments on public proceedings”. The Electronic Frontier Foundation describes California’s rule on the privilege this way:
[I]n California you have a right to make “a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.” This provision has been applied to posting on an online message board, Colt v. Freedom Communications, Inc., and would likely also be applied to blogs. The California privilege also extends to fair and true reports of public meetings, if the publication of the matter complained of was for the public benefit.
https://www.eff.org/issues/bloggers/legal/liability/defamation
Many states have similar laws, including New York (site of Adelson’s defamation suit). New York’s fair report privilege protects “the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding …”.
Here, it wasn’t the AP or Huff Post that were sued for defamation, but someone else entirely – NJDC and its principal Harris, the defendants in Mr. Adelson’s suit. For various procedural reasons, the court applied Nevada law. According to the court, Nevada “has long recognized a special privilege of absolute immunity from defamation given to the news media and the general public to report newsworthy events in judicial proceedings” (quoting Sahara Gaming Corp. v. Culinary Workers Union Local 226, 984 P.2d 164, 166 (Nev. 1999)).
But what was equally critical to the defendants’ reliance on the fair report privilege was attribution of the source of the statement at issue, in order to “fulfill the function of conveying to the public information about what went on in the courthouse, which is the principal reason for according such a privilege.” The court went on to discuss how to meet this burden of appropriate attribution:
[T]he relevant question is whether ‘the average reader would be []likely to understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding. It must be apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents or proceedings.’
In other words, under the fair reporting privilege you can’t just reprint something that you read somewhere in a court document. You have to make clear that it came from a court document. Conveying information to the public – and “fair” reporting on issues of public concern – depends on readers understanding, as a threshold matter, that you’re actually reporting on something that was stated or published in a public document or arena. In Adelson v. Harris, the court felt that that burden was met through hyperlinks to the original story from the Huff Post.
Why were hyperlinks satisfactory to meet this burden? The court in Adelson v. Harris writes, “The hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source.” The court goes on to praise the use of hyperlinks as – potentially – “decreas[ing] the need for defamation suits” because “Internet readers have far easier access to a commentator’s sources”.
In the court’s view, it is, therefore, to be expected that readers will view the use of hyperlinks as inviting and facilitating readers to do their own fact-checking. It is a liberal view of publishing in the age of the Internet, obviously putting somewhat of a burden on readers to do their own homework before assuming the worst about a story subject. On the other hand, as the court in Adelson v. Harris also noted, simple use of hyperlinks does not excuse inaccuracies or misstatements or mischaracterizations of the underlying facts in the linked-to documents. The core element of the “fair reporting” privilege still remains the obligation of “fair” reporting. Here, the court pointed to the accuracy of the statements and further noted that at the time of the publication, Mr. Adelson had not yet filed his response in the underlying lawsuit involving his former employee, “so it cannot be seriously maintained that the Petition unfairly presented a one-sided view of the action.”
The attribution is important, but so too is the accuracy of the statement and the fairness of the presentation of the facts. Without satisfying all of these elements, the statement is just a cheap shot.
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