Online defamation: do hyperlinks constitute republication for Florida defamation and trade libel claims?

• Author: Eng, Donna
• Position: Business Law

These days, businesses are at least equally associated with their websites as with their "brick and mortar" stores. Every Fortune 500 company has a website. (1) The use of hyperlinks (2) on websites is commonplace. In fact, adding hyperlinks to a website is a primary method of increasing the website's exposure and thereby traffic through search engine optimization. (3) But what if the hyperlink refers an Internet user to information that is purportedly defamatory or libelous? Is there a Florida cause of action for defamation or libel when a hyperlink refers the Internet user to previously published defamatory or libelous information?

Because no Florida appellate court has squarely addressed this issue, this article summarizes how other federal and state courts have ruled.

Florida Defamation Law

Florida trade libel and defamation claims both require a falsity to be published. (4) The elements of a Florida trade libel claim are 1) a falsehood; 2) has been published or communicated to a third person; 3) when the defendant-publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff; 4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and 5) special damages are proximately caused as a result of the falsehood. (5) Similarly, the elements of a Florida defamation claim are 1) publicity; 2) falsity; 3) the actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; 4) actual damages; and 5) the statement must be defamatory. (6)

Other Jurisdictions

Courts in foreign jurisdictions have held that the use of hyperlinks does not constitute republication to support a cause of action for defamation or libel. In Haefner v. New York Media, LLC, No. 150189/08, 910 N.Y.S.2d 4052009; N.Y. Slip Op. 52765, *1 (U) (N.Y. Sup. Ct. Oct. 22, 2009) (unpub.), an article containing allegedly libelous statements was originally published for the first time in New York Magazine in 2000. Plaintiffs claimed that in 2007, the magazine's website republished the article for a second time on its own website, on another unrelated website, and in print. (7) That second article contained hyperlinks referring to the original article but did not contain any of the original article's material. (8) James Haefner and other former police officers filed a class action, asserting various claims of libel. (9) In almost summary fashion, the trial court ruled that because the hyperlinks in the second article merely redirected the reader to the first article, the hyperlinks did not constitute republication to support a cause of action for libel under New York law. (10) In so holding, the court quoted Firth v. State of New York, 775 N.E.2d 463, 466-467 (N.Y. 2002), for the proposition that republication of a defamatory statement may retrigger the statute of limitations if the republication actually reaches a new audience, but that mere addition of unrelated information to a website "cannot be equated with the repetition of a defamatory matter in a separately published edition of a book or news paper." (11)

In Salyer v. Southern Poverty Law Center, Inc., 701 F. Supp. 2d 912, 913-914 (W.D. Ky. 2009), the defendant, Southern Poverty Law Center, published a report on its website in July 2006 containing allegedly defamatory statements about the plaintiff, Salyer. In August 2006, the law center published a print version of that same report and mailed it to various subscribers. (12) The article remained on the law center's...