Link <> Defamation

A recent decision by the United States Court of Appeals has upheld the principle that linking to potentially defamatory ideas and information on internet websites will not constitute defamation.

Defamation law in both the United States and Australia states that republication of another person’s defamatory statement will give rise to a new and separate defamation, regardless of whether it credits the original publisher with the statement or not.

In Re: Philadelphia Newspapers, the United States Court of Appeals for the Third Circuit held that a link to defamatory material on the Philadelphia Inquirer website did not constitute defamation, as it is was considered merely a citation rather than republication of the defamatory statement.

This decision is in line with a 2011 decision by the Supreme Court of Canada where it was held that a link by the P2P news website to a defamatory article was not republication and was therefore not defamation.

Nonetheless, website operators should still exercise caution when linking to websites, as the Supreme Court of Canada held that if the defamatory content from the hyperlinked material is repeated in some way, this may be considered defamation. Such a way this may occur is if the link itself includes the title or part of the body of the defamatory material (as is the case with many blogs).

These judgements provide guidance as to how Australian courts may deal with republishing defamatory statements via a website link, as we are not aware of any Australian cases which have considered this issue.

If you are concerned about any potentially defamatory material you may be publishing on your website or that as been published about you, please contact Certus Legal Group for further information and advice.