Terrible Ruling: Forwarding A Link Can Be Considered Defamation
from the section-230-anyone? dept
One of the more famous cases that helped establish a key aspect of caselaw around Section 230 safeharbors was the famous Barrett v. Rosenthal case that established that posting a missive written by someone else, even if that writeup was libelous, did not make the reposter liable, since they were not the ones who created the content. That case is cited regularly in defamation cases involving forwarded material. Apparently, a federal bankruptcy court in Texas was either unaware of this ruling or decided it didn't apply. KnownHuman points us to the news that the bankruptcy court found that just forwarding a link to defamatory material can be considered defamation. This is even less than what happened in the Rosenthal case, where the content was reposted. Here, there were just emails with the link, not the content, and the court found that they were effectively republishing the content.While the case before the U.S. Bankruptcy Court for the Southern District of Texas revolved around William Perry's bankruptcy proceedings, the court relied on Texas law to determine that e-mail messages Perry sent linking to websites that made false and defamatory statements about Sugar Land, Texas, mayor David Wallace met the "actual malice" standard a public official needs to bring a defamation claim, according to the Reporters Committee for the Freedom of the Press.The article quotes someone from the EFF, which suggests that Perry didn't even raise a Section 230 defense, which would be unfortunate, if true.
Perry only included the links to the posts, which he did not write, in the e-mail--none of his own comments. He was found to have made some comments orally about how the blog might affect Wallace's career.
This is a horrible ruling in so many ways. Think about the possible impact. How many times do people pass around links via email, Facebook, Twitter or some other method? Based on this ruling, if a particular article is found to be defamatory, everyone who passed along a link to that article may now be open to liability for the defamation in the article. That's downright scary.
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Filed Under: defamation, forwarding links, section 230
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What if the source changes
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Re: What if the source changes
Suppose that I write an web page about myself and send the link to someone (that I don't like) asking if they would send it on to some people they know.
Then I change the page to be defamatory (by myself about myself), can I then sue the person I sent the link to for libel? (assuming that they actually did forward the link to others)
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Re: Re: What if the source changes
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On behalf of vocal minority (but solid voting ) groups I support this idea, hell yeah bring it on, we need a G.W Bush in ever court house in America so we can get those pesky dope heads doing 20 years hard labour for smoking a joint, the gays and lesbians to automatically lose every court case and have whoever participates in the latest media scare activity sent to Gitmo and abortion doctors to be hung drawn and quartered
To anyone who thinks elected judges are a good idea, may I present the political system and the people it puts in power.
Do you really want people like them judging your court case?
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Re: Re:
As to the reason for this ruling, from another source, key parts in bold
"A former partner of Perry’s in a real estate venture, David Wallace – who was also the mayor of Sugar Land, Texas, and a candidate for U.S. Congress – brought one of the defamation claims."
Definatly sounds like the 'old boys club' in action to me, if he appeals and gets the appeal out of area (or better yet out of texas) winning shold be a slam dunk
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Re: Elections
State judges in Texas *are* elected and trust me, it creates more problems that it solves.
How'd you like to be facing a copyright infringement suit where one of the judge's biggest campaign contributors was RIAA and MPAA?
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Re: Re: Elections
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Re: Re: Re: Elections
Never said they were. I was only pointing out that a system of elected judges is just as bad, if not worse, than appointed ones.
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*here ends the lesson* :-)
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That will never change. So deal with it.
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As a resident of Marshall Texas...
yet another shame on my state.
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Re: As a resident of Marshall Texas...
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Go Texas!
1) No safe haven for patent trolls
2) No ridiculous liability for things you didn't say
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Re: Go Texas!
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HUH
you link to something that is defamatory, or whatever
this is like
YOU POINTING a sign saying mister police the crack house is over there and they come arrest you cause you LINKED to the crack house
LIKE SOMEHOW YOUR DOING CRACK AND ALL THE CRIME THAT GOES WITH IT
VERY VERY BAD RULING
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Re: HUH
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Re: HUH
*warning* this link is under federal investigation on the ground of linking to potential defamatory content, which might or might not include your local politicians. Proceed at your own peril after providing us with your identity. Please note that frivolous entries make you liable according to paragraph 68954b. section 56t, bullet 5. (In short, we contact your ISP)
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think this way
and i post YOUR A FUCKING SICK PEDOPHILE ANAL RAPING BASTARD
with your real name in it
YOUR LINK YOU GET BUSTED
see what the goal is
there trying to slow down and control the blog postings
once this gets round no one will link to nothing
and then those news aggregators close up for paywalls
PROFIT
FUCKING GOOD THING I LIVE IN CANADA
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Re: think this way
I do agree that this is just an attempt to manipulate non mainstream media to the unfair benefit of mainstream media.
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Re: think this way
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Terrible for YOU, maybe
Payday, baby!
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Re: Terrible for YOU, maybe
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And the surprise is?
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In the modern language of online discourse, links can be like words. If you choose a series of words maliciously and without regard for the truth, with the aim and effect of destroying someones reputation with falsehoods, you've met traditional standards of slander/libel/defamation. Same with conscious choice of false links to do the most possible damage.
It would be the same if you excerpted lots of defamatory statements from other authors -- choosing them without regard to their truthfulness, just based on the damage they could do. By choosing exactly what to repeat, you've communicated yourself, and can't simply pass it ff as someone else's problem.
It's not a mechanical standard, where you're going to be found guilty by a defamation-robot if one of your many links turns out bad, or changes out from under you, or was forwarded with a good-faith belief it was true. Judges/juries look at the totality of the evidence about peoples' mental states and motivations, as well as the actual effects. And that's as it should be.
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Re:
In the modern language of online discourse, links can be like words. If you choose a series of words maliciously and without regard for the truth, with the aim and effect of destroying someones reputation with falsehoods, you've met traditional standards of slander/libel/defamation. Same with conscious choice of false links to do the most possible damage.
You can choose whatever the hell you want and it's not libel until you create your own composition of them and publish it. Links are entirely different things; that's more like pointing at a paper that contained libelous statements.
It would be the same if you excerpted lots of defamatory statements from other authors -- choosing them without regard to their truthfulness, just based on the damage they could do. By choosing exactly what to repeat, you've communicated yourself, and can't simply pass it ff as someone else's problem.
If you "excerpted lots of dematory statements", then you would be creating yourself a new work that is libelous. It's not as though I'm committing libel because this one defamatory work contains the letters a, e, and i and this other one has l, m, and n, which my own sentences also use. Once again, links are merely pointing at the address of somebody else's work that you have no control over. Is it defamatory to even talk or write about a defamatory work in general discourse? Then it shouldn't be defamatory to link to it.
It's not a mechanical standard, where you're going to be found guilty by a defamation-robot if one of your many links turns out bad, or changes out from under you, or was forwarded with a good-faith belief it was true. Judges/juries look at the totality of the evidence about peoples' mental states and motivations, as well as the actual effects. And that's as it should be.
Oh, so we'll just leave it to the judges and prosecutors to decide on the spot whether to fine us or not. Good plan.
I think you either have a poor understanding of the internet or didn't think through your post at all.
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Re: links are speech
No, it'll take a trial. Just like other potentially-defamatory speech is judged.
If you "excerpted lots of dematory statements", then you would be creating yourself a new work that is libelous.
Exactly. And a curated/forwarded collection of links can be a new work, too. So if I asked you, "what do you think is the truth about Mike Masnick?", and you responded with a list of links that were all individually defamatory -- malicious lies intended to destroy his reputation -- well, you've communicated something tangible, that reasonable jurors can evaluate if called upon to do so. The indirection of using links doesn't help any more than the indirection of selective quoting. You've made communicative choices -- from a vocabulary of words that include all possible links -- and your choices sent a clear message that was intentionally false and malicious, legally defamatory.
You can't use a robotic defense -- "but I personally didn't say anything!" -- because jurors are not compilers; they can and do evaluate the totality of the situation including your plainly visible intent.
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Now that I know there will be 100% accuracy, I'll have no qualms whatsoever about communicating with other people about topics that might stray into the realm of defamation.
No chilling effects here, thank goodness.
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God help me if I'm a history teacher, because then I could be charged with promoting revolution, regicide, political assassinations and terrorism.
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Re: Links
Except when they're not. A link points to a web page, not specific words. The words on the web page can change, while the link remains the same.
Say I pass along a link today to a page that doesn't have defamatory content. Then tomorrow the author changes the content on that page and it becomes defamatory. Suddenly I'm liable for defamation that didn't even exist when I forwarded that link.
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Re: Re: Links
No trial will apply tests of defamation or precedents robotically; this isn't a logic puzzle where the legal system is trying to trap people for unintentional communication. Nor would you be likely get in trouble for forwarding a link to a long discussion thread, where a few comments were defamatory.
The issue would be: was your communicative intent spreading damaging and malicious falsehoods? Judges and juries have to assess this all the time, and (at least in the US) they err in the favor of speakers. Only if there's strong evidence you chose links specifically for their damaging falsehoods would there be some danger of liability... and if you're choosing links with malice and a disregard for the truth in a calculated effort to harm someone, well, then, you deserve liability. You shouldn't be able to 'launder' your own malicious intent just by expressing it through the language of hyperlinks.
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Re: Re: Re: Links
> intent spreading damaging and malicious falsehoods?
That would be the proper philosophical issue, but all too often the plaintiff's only real issue is whether you have deep pockets and how best can they get their hands on some of it.
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Re: Re: Re: Links
> precedents robotically; this isn't a logic puzzle
In a world where infants and children are legally barred from flying on an airplane because they have the same name as someone on a terror watch list, I don't have the same blind faith in the triumph of common sense in the legal system that you seem to have.
All to often rules and laws *are* applied robotically with little consideration to the absurdity of the result.
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It depends...
I would have to think that if I forwarded a link to www.masnickblowsgoats.com along with a cover note that said, "I'm telling you, man, this is the TRUTH! Masnick and goats! He really does it!", it might very well be considered defamatory. Of course, if Masnick should choose to deny he has anything to do with goats in that way, I'm sure we're all open to whatever proof he may produce.
There's merely pointing to what someelse has said, and then there's "pointing" (wink, wink, nudge, nudge) to what someone else has said. I would think the law on defamation should recognize the difference between the two, and not provide a loophole whereby someone can defame you without responsibility merely by spreading someone else's defamatory remarks instead of saying it directly yourself.
So, I think it should all depend on the facts, not on some bright-line rule somehow designed to promote the idea that anything done online should be without legal consequences.
HM
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Re: It depends...
I fail to see what the link has to do with anything here. If this is defamatory, then it's defamatory because of the words you just wrote yourself, whether the link is there or not. So if text adjoining the link is, in your mind, necessary for forwarding a link to be libelous, then the link has nothing to do with it. It's libelous because of the text you wrote, as libel is already legally defined.
There's merely pointing to what someelse has said, and then there's "pointing" (wink, wink, nudge, nudge) to what someone else has said.
But...you didn't say it either way. What exactly are you referring to by "wink, wink, nudge, nudge"? The example you just provided would libelous on it's own merits? Once again, if forwarding a link is not defamatory in itself, then forwarding link is not libelous. You're basically saying, "I think the act of forwarding a link should be defamatory if the link is accompanied by something defamatory the forwarder has written." Well no shit, Perry Mason.
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Re: Re: It depends...
Those are the words I wrote, standing alone, without the link. Hardly defamatory. However, if I include a link to a website which includes claims of bestiality on Masnick's part, then I would suggest there's at least a possibility that it's defamatory (keeping in mind the other things associated with defamation cases, such as truth being a defense, etc.). There was no context for the words until the link with other material was associated with it.
So, yes there is shit, but, unfortunately, you stepped in it when you weren't reading closely enough.
HM
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A lot of people (ACs) posting here seem to forget the first part of this post. Please read and understand, maybe you won't look like an idiot.
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Re: Re:
actively linking to slanderous material and saying "this is material you should read because it is right and true" makes you link just as slanderous, and 230 does not even come close to applying.
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Amusing, as always.
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http://en.wikipedia.org/wiki/Barrett_v._Rosenthal
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1. Newspaper guilty for defamatory story
2. I'm guilty because I 'linked' the story when someone else caught at glance at the front page
3. That person is guilty because they said to their friend "hey have you seen what xxxxx has done?" and pointed towards the paper.
4. The mind-reading gypsy four seats down is also guilty because......etc
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Hey, it's Texas. It doesn't need further explanation.
If I lived there, I'd be looking to move out before some idiot judge made some moronic decision that would somehow negatively impact me directly. As it stands now, they haven't gotten that far, but it sure looks to me that it's where they're heading. It's looking more and more like there isn't a hell of a lot of philosophical separation between the Texas judicial thugs and the Taliban.
Yeeehaaah! We don't need no stinking Constitution. We'll just make up laws as we wish, and they'll mean what we say they mean, which we can change whenever we want. I'd be pretty embarrassed to say I was a Texan, should I be so misfortunate.
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Qualifications
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makes sense to them
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Deep Water
I can see (everyday) that people forward me links that in my view only an idiot could believe. But I know the person sending me the link really believes what they sent. For example, my brother may truly believe that Obama kills babies with his bare hands every morning before breakfast (he truly does), and I see his e-mails to me as intentionally perpetuating a falsehood that is at best slanderous. Yet he truly believes it, so as misinformed as someone may be, their efforts to "spread the truth" results in the magnification of a clear lie. So, are we going to now ploice stupidity to find its true intent (stupid or malicious?).
Yet there are many e-mails I get that are generated by people who do a fantastic job of perpetrating lies wrapped in known facts by taking them out of context or manipulating their meaning, or leaving out other very important facts (like Glenn Beck). He may claim he is expressing opinion while also claiming that he is giving facts and news you cannot get elsewhere. Is the government now going to sift through manipulations to determine if they are of the intent to perpetuate falsehoods or if the whako speaking actually believes he has presented enough facts (even though they are selective) to claim they are true?
I believe that yes, posts on the Internet are subject to the same laws as all other slander. And yes if knowing you are perpetuating a lie with the intent to spread it, you are opening yourself to the inspection of the law. BUT, are there really clear and distinguishable laws, criteria, and determinations of intent that could be applied to such a policing process? No. And it is really scary to think that some judge, or prosecuting attourney or Bueauracrat is going to define what is the fine line between stupidity and malice.
This ruling is clear as mud and has gone to deeper water then the judge is capable of swimming.
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Court decisions are limited to two jurisdictions
The Bankruptcy Court for the Federal Southern District of TX (see map at http://www.txs.uscourts.gov/addresses/ ) made the ruling in the Perry bankruptcy case, and that can be cited as precedent only within the parts of Texas within the Federal Southern District.
As a state court decision, Barrett v. Rosenthal does not establish precedent anywhere except in California; any other court looking at such a matter is ruling de novo.
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