December 5, 2012

Hyperlinks Do Not Republish Alleged Defamatory Material

Digital Technology & E-Commerce Blog
Richard Raysman

In In re Phila. Newspapers LLC, 690 F.3d 161 (3d Cir. 2012), the Third Circuit held, among other things, that linking to previously published material is not "republication" under the single publication rule.  The appeals court affirmed the lower court's denial of certain parties' request for the allowance of administrative expense claims relating to a webpage posted by the debtor newspaper that contained links to prior stories that allegedly defamed the petitioning parties.  The petitioning parties argued that the links "republished" the old articles for statute of limitations purposes, but the court held that the petitioning parties had not sustained their burden of proof in establishing entitlement to an administrative expense claim because of a failure to demonstrate a viable cause of action.

The court reasoned that Pennsylvania courts would extend the single publication rule to publicly accessible material on the Internet, such that it is the original printing of the defamatory material and not the circulation of it which results in a cause of action.  Applying the single publication rule, the appeals court stated that a link is akin to the release of an additional copy of the same edition of a publication because it does not alter the substance of the original publication: "[T]hough a link and reference may bring readers' attention to the existence of an article, they do not republish the article."

Notably, this past month, a Minnesota district court followed the holding of In re Phila. Newspapers LLC:

  • Shepard v. TheHuffingtonPost.Com Inc., 2012 WL 5584615 (D. Minn. Nov. 15, 2012) (hyperlinks to the original published article do not restart the statute of limitations and the single-publication rule applies to bar plaintiff's claim).

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