An activist group posted an online petition urging then-Presidential candidate Mitt Romney to reject Nevada billionaire Sheldon Adelson’s campaign contribution. The petition linked to an AP story, which in turn linked to a court filing alleging that Adelson OKed his hotel empire chasing prostitution revenues. Adelson claims the petition defamed him. The defense won in the district court (my prior blog post) based in part on the fair reporting privilege to defamation, which gives extra protection from defamation for reporting on court filings.
On appeal to the Second Circuit, the court certified two questions to the Nevada Supreme Court, including:
Does a hyperlink to source material about judicial proceedings in an online petition suffice to qualify as a report for purposes of applying the common law fair report privilege?
Because the petition linked to the AP story, not directly to the court filing, the Nevada Supreme Court rephrased the issue:
we must consider, as an issue of first impression, whether a hyperlink in an Internet publication that provides specific attribution to a document protected by the fair report privilege qualifies as a protected report for purposes of that privilege.
(Only a lawyer could write a sentence like that!)
In a sentence that could have been written at the turn of this century, the court starts by celebrating the virtues of a hyperlinked web:
Hyperlinks provide strong attribution because they allow direct access to underlying materials, are intuitively easy to use, and are extremely prevalent online. A reader can click on a hyperlink and immediately determine whether official proceedings are implicated.
But not everything is aces with hyperlinks:
However, there is a drawback to hyperlinks as attributions—an average reader must identify a hyperlink, understand its importance, and ultimately open the link. When a hyperlink is not found, understood, or opened by a reader, it has failed as a source of attribution.
So the court is interested in whether readers will sufficiently notice any hyperlink to the source materials, prompting the court to digress into the “clickwrap”/”browsewrap” online contract formation rabbit hole, with cites to Specht, Nguyen, Zappos, & Fteja. With little gained from the digression, the court considers whether the petition’s link to the AP story was sufficiently prominent to readers:
Although the AP hyperlink was in the second of four textual paragraphs in the petition, it is important to note that the hyperlink was placed in the same sentence as the content it purported to support. That is to say, the AP news article supported the proposition that a report existed stating that “Adelson ‘personally approved’ of prostitution.” Thus, although the hyperlink was not conspicuous in a general sense, when reading the specific sentence the hyperlink functioned like a footnote. For this reason, we conclude that the hyperlink was conspicuous in the context of supporting a specific claim.
Furthermore, the textual explanation accompanying the hyperlink notifies readers that the petition draws upon other sources. The sentence in which the hyperlink appears states: “But this week, reports surfaced that … Adelson ‘personally approved’ of prostitution in his Macau casinos.” The sentence includes the qualifier “reports” and provides the operative hyperlink over the text “personally approved,” which is quoted. The hyperlink also provides support for the text it covers (i.e., the AP report supports the proposition that Adelson personally approved of prostitution). Although there were other hyperlinks in the sentence, we conclude that the textual references help make apparent to an average reader that the petition draws information from another source. Also, because the AP hyperlink is contained within the same sentence, an average reader interested in what the “reports” stated would simply click on the AP hyperlink to learn more.
The AP hyperlink, as a specific, active, and accurate attribution, provides average readers notice that the petition draws from a summary of judicial proceedings because the petition’s text indicates it is based on “reports” and the hyperlink’s placement and function allows for it to operate like a footnote. Therefore, we conclude that the online petition, as it existed when Adelson’s complaint was filed, fell within the purview of Nevada’s fair report privilege
With this, the Nevada Supreme Court sends its answers about Nevada defamation law back to the Second Circuit, where it appears Adelson is likely to lose his case.
Hyperlinks as Citations. This opinion dealt with a niche-y defamation law issue (the fair reporting privilege), but I see it as part of a broader legal trend. When I first blogged this case in 2013, I wrote: “if you support your negative factual assertions with hyperlinked citations, you can reduce the risk of a successful defamation claim.” Other cases in this genre include Ayyadurai v. Techdirt, Redmond v. Gawker, and Seldon v. Compass. Similar to what you learned in 7th grade math: if you’re treading into possible defamation litigation zones, SHOW YOUR WORK.
Related: linking to defamatory content isn’t defamation (e.g., Slozer v. Slattery, Life Designs Ranch v. Sommer) and is protected by Section 230 (e.g., Vazquez v. Buhl, Directory Assistants v. Supermedia).
Link Rot. In a troubling footnote, the court discusses the negative consequences of “link rot” (citing Prof. Jonathan Zittrain): “If a hyperlink fails to connect a user to its underlying source, it will not bring a document within the fair report privilege.” I don’t think the court thought this through. Read literally, it means the exact same material could be not defamatory on day 1, become defamatory on day 2, and possibly (if the linked URL gets restored) go back to being not defamatory on day 3–even though the content itself hasn’t changed at all, even though the author can’t control what happens on remote servers, even though the author may not know about the link rot, and even though the author may lack the technical and legal authority to fix a broken link (if, for example, a third party publisher isn’t able or willing to update the content). The “link rot” discussion was clearly dicta because the link hadn’t rotted in this case, so I hope any future court encountering the issue will think this issue through more carefully. Among other reasons why a future court might reach a different conclusion: the link might still work in Internet Archive; or a simple Google search might allow the reader to find the source despite the link rot.
[Jargon watch: this opinion, and the district court opinion from 2013, are the only two cases I found in the Westlaw database containing the phrase “link rot.”]
What Do Readers Expect? The opinion turns on whether an “average reader” would understand that the underlined phrase “personally approved” was a hyperlink with supporting information. Without any empirical evidence to bolster its views, the court treats Internet users circa 2017 as savvy enough to interpret underlining in web pages as signals of hyperlinks. While this conclusion seems unassailable, note that it depends on technological facts that weren’t before the court and that change over time (i.e., would courts have reached the same conclusion in 1997?). Thus, the court made the same kind of assumption that the Second Circuit made in the uncited Meyer v. Uber ruling on contract formation in the mobile environment, when it reached an almost identical conclusion that “a reasonably prudent smartphone user knows that text that is highlighted in blue and underlined is hyperlinked to another webpage where additional information will be found.” I think both courts reached the right conclusion, but I am troubled by the inherent precariousness of appellate judges making assumptions about what average or reasonable online consumers would expect.
Billionaires and Defamation. What’s the deal with billionaires losing defamation suits (a topic I’ve blogged many times)? Is it that they are targets for harsher criticism than the rest of us? That they have thinner skins? That they can afford defamation lawsuits? (It is, after all, a sport of kings). That they are used to winning? That they expect to drive defendants into submission through expensive litigation, regardless of legal merits? I don’t fully understand the dynamics.
I do know that unsuccessful billionaire defamation lawsuits are one of the best reasons to support anti-SLAPP laws, because the laws change the economic calculus for defendants (though the risk of a fee shift won’t deter billionaires) and speeds up resolution of unmeritorious lawsuits. Nevada recently upgraded its anti-SLAPP law and successfully thwarted a different billionaire’s (Steve Wynn) efforts to undermine it. That’s the good news, but too many Americans still lack anti-SLAPP protection and are reluctant to discuss billionaires candidly due to the risk of being sued, meritoriously or not. So I see this lawsuit as another good reason to support a federal anti-SLAPP law to level the playing field for all of us.
Case citation: Adelson v. Harris, 2017 WL 4294562 (Nev. Sept. 27, 2017).
Source: Eric Goldman Legal