Terrible Ruling: Forwarding A Link Can Be Considered Defamation

from the section-230-anyone? dept

Mon, Jun 7th 2010 9:58am — Mike Masnick

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.

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.

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.

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

53 Comments

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Xyro TR1 (profile), 7 Jun 2010 @ 9:36am

This is just wrong. I wonder if there is any chance of it getting overturned.
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zaven (profile), 7 Jun 2010 @ 10:16am

What if the source changes
Equally horrible, what if the linked article changes to become defamatory after you post a link to it? There wouldn't be any way of really knowing if the source you linked to had changed from when you posted the link
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Anonymous Coward, 7 Jun 2010 @ 10:17am

This is why federal judges should be directly elected by the people and they should be forced to run up for re election every so often.
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Ccomp5950 (profile), 7 Jun 2010 @ 10:17am

As a resident of Marshall Texas...
(My office is also 2 blocks from the Federal Courthouse AKA: Rocket Docket)

yet another shame on my state.
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Lone Ranger, 7 Jun 2010 @ 10:23am

Go Texas!
And this is why Texas SHOULD break away from the United States and become it's own country...

1) No safe haven for patent trolls

2) No ridiculous liability for things you didn't say
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NAMELESS.ONE, 7 Jun 2010 @ 10:27am

HUH
this is messed up
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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NAMELESS.ONE, 7 Jun 2010 @ 10:29am

think this way
you linke to an article that has posts or a blog under it UM LIKE THIS ONE

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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A. Lloyd Flanagan, 7 Jun 2010 @ 10:29am

Terrible for YOU, maybe
Me, I'm putting up a web site that says terrible things about me, then starting a chain letter with a link to it.

Payday, baby!
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aguywhoneedstenbucks (profile), 7 Jun 2010 @ 10:33am

Re: As a resident of Marshall Texas...
If you go to Longview or Tyler and happen to see me, remind me to buy you a beer.
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Anonymous Coward, 7 Jun 2010 @ 10:33am

Re: HUH
It's like the author of one document being held liable for referencing another document that a court deems to be defamation.
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Anonymous Coward, 7 Jun 2010 @ 10:35am

Re: think this way
Like Canada is any better.

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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mjb5406 (profile), 7 Jun 2010 @ 10:36am

And the surprise is?
Texas... seems like when people there go into politics or become judges something snaps and they start making themselves look stupid. Bad enough that Governor Perry wants to secede from the US!
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Bubba Gump (profile), 7 Jun 2010 @ 10:41am

Re: What if the source changes
Very good point.

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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Chuck Norris' Enemy (deceased) (profile), 7 Jun 2010 @ 11:01am

Re: think this way
Yes...good thing you live in Canada...please stay!
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Atkray (profile), 7 Jun 2010 @ 11:02am

Re: Terrible for YOU, maybe
Do me a favor, please send it to as many judges as you can perhaps a few of them will forward it.
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Chuck Norris' Enemy (deceased) (profile), 7 Jun 2010 @ 11:06am

Is whoever told the mayor David Wallace about the posts, emails, or whatever also being prosecuted? They should be according to this judge.
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gojomo (profile), 7 Jun 2010 @ 11:07am

I think commenters (including Mike) aren't giving the court enough credit here.

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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Anonymous Coward, 7 Jun 2010 @ 11:13am

Re:
This has no relevance on actually educating judges about harmful rulings. What needs to happen is judges need more than a basic understanding of technology if they are to be ruling on these matters.
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Hugh Mann (profile), 7 Jun 2010 @ 11:23am

It depends...
Not having read the details, my initial reaction is that it doesn't make sense that forwarding a link should NEVER result in liability for defamation. My suspicion is that the original case was something like - merely forwarding a link with nothing else is not necessarily defamation.

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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Ryan, 7 Jun 2010 @ 11:26am

Re:
Hmm...no.

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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Anonymous Coward, 7 Jun 2010 @ 11:29am

actually, it is an excellent ruling. once again, it isnt a question of someone or some service unknowingly linking to some things illegal, but in fact someone taking steps to actively like to something illegal.
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Sneeje (profile), 7 Jun 2010 @ 11:29am

Re:
Whew, and I thought you were going to tell me that a judge was just going to guess at why I forwarded a particular link. Instead, they are going to read my mind to determine why.

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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Anonymous Coward, 7 Jun 2010 @ 11:29am

Re:
By your logic, referring someone to the Communist Manifesto makes me a Communist, or telling someone about Mein Kampf makes me a Nazi supporter.

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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Comboman (profile), 7 Jun 2010 @ 11:36am

Re:
I have to agree. This is not as case of third-party liability like Google being liable for "linking" to some slanderous website. In this case, the defendant knew what the content of the website was and actively promoted it with the intention of defaming the plaintiff.
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Ryan, 7 Jun 2010 @ 11:37am

Re: 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.

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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JackSombra (profile), 7 Jun 2010 @ 11:51am

Re:
On behalf of corporate America I must object, don’t we pay enough “campaign contributions” to the law makers (politicians) to get things our way, we should not have to start paying the same for the actual interpreters of those laws to make sure we get the verdicts we want. Some things must be left to chance, otherwise what would be the point of a legal system anymore?

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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JackSombra (profile), 7 Jun 2010 @ 12:03pm

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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hmm, 7 Jun 2010 @ 12:03pm

I'm sitting on a train reading a newspaper:

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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btr1701 (profile), 7 Jun 2010 @ 12:03pm

Re: Elections
> This is why federal judges should be directly elected by the people

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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Chronno S. Trigger (profile), 7 Jun 2010 @ 12:05pm

Re:
"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."

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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btr1701 (profile), 7 Jun 2010 @ 12:07pm

Re: Links
>I n the modern language of online discourse, links can be like words.

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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Mr. Oizo, 7 Jun 2010 @ 12:07pm

Re:
Or rather why the idiots should not rule on things they don't understand. I find that people are becoming more and more stupid every day. Instead of facts (hard or otherwise) we end up with gut feelings and intuitions and -even worse- believe systems. Politicians happily abuse this and associate a variety of things with one another. E.g: a harsh word with an idea, or a schandal here and a person there. Those are not necessarily linked to each other, but nobody cares. Nobody wants to understand. Looking at facts takes a lot of work and admitting your preconception was wrong is even more challening. My goodness, one could become tired of that. etcetera.. I'm, going to end my little rant here, my point mainly being that this is merely a symptom of stupidity than actually a bad intented ruling.

*here ends the lesson* :-)
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Mr. Oizo, 7 Jun 2010 @ 12:14pm

Re: HUH
In the future we will need to pass along an identity before clicking on links:

*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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Anonymous Coward, 7 Jun 2010 @ 12:16pm

Re: Re: Re:
Sounds like the client got some bad lawyering.
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Bengie, 7 Jun 2010 @ 12:25pm

Re: Go Texas!
That would be too nice. I say we slowly sell/give pieces of Texas back to Mexico until there's nothing left.
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Florida is Jealous, 7 Jun 2010 @ 1:38pm

Let's not forget, it is Texas after all.
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Hugh Mann (profile), 7 Jun 2010 @ 1:40pm

Re: Re: It depends...
What is defamatory about, "I'm telling you, man, this is the TRUTH! Masnick and goats! He really does it!"?

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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The Devil's Coachman (profile), 7 Jun 2010 @ 2:01pm

Hey, it's Texas. It doesn't need further explanation.
Looks like the Lone Star State is becoming the capital of idiotic jurisprudence in the entire world, never mind the USA. Between the Eastern District patent troll suits and this, sounds like their ideas about secession are something that should be actively encouraged. Then they would have to keep their idiocy to themselves. That, and their pointy-toed boots and six pound belt buckles. Oh, and lest I forget, that shite beer they love so much down there. They won't be missed, ever.

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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Anonymous Coward, 7 Jun 2010 @ 2:25pm

Re: Re:
provided the publisher is not also editing the content. if the publisher edited the content, annotated it, added in material, or in any way changed it, they join the commentator on the other side.

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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Anonymous Coward, 7 Jun 2010 @ 2:38pm

Re: Re: Elections
State judges are not federal judges and copyright is a federal issue.
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Anonymous Coward, 7 Jun 2010 @ 3:13pm

Re: Re: Re:
TAM ignores the case law to ramble on about possibilities that don't even exist in this circumstance.

Amusing, as always.
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Michael Kay, 7 Jun 2010 @ 3:32pm

Qualifications
Are judges in Texas actually required to have any professional qualifications?
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Mike Masnick (profile), 7 Jun 2010 @ 5:58pm

Re: 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.

http://en.wikipedia.org/wiki/Barrett_v._Rosenthal
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steve brandlein, 7 Jun 2010 @ 7:17pm

makes sense to them
The courts of America and those that make decisions therein have been lately been gaining a reputation for lacking common sense. This latest decision is no more intelligent, par for their present course.
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Clear as mud, 7 Jun 2010 @ 7:42pm

Deep Water
This is where courts get into deep water and cannot show a clear path to shore.

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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Chargone (profile), 7 Jun 2010 @ 10:03pm

Re: Re: What if the source changes
is it actually possible to defame ones self?
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steward, 8 Jun 2010 @ 6:35am

Court decisions are limited to two jurisdictions
Barrett v. Rosenthal was decided by the CA supreme court, and thus only applies to California.

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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gojomo (profile), 8 Jun 2010 @ 11:57am

Re: links are speech
so we'll just leave it to the judges and prosecutors to decide on the spot whether to fine us or not
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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gojomo (profile), 8 Jun 2010 @ 12:10pm

Re: Re: Links
This idea of the destination of a link changing out from under you having any bearing reflects a total misunderstanding of jurisprudence.

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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btr1701 (profile), 9 Jun 2010 @ 8:08am

Re: Re: Re: Elections
> State judges are not federal judges

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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btr1701 (profile), 9 Jun 2010 @ 8:10am

Re: Re: Re: Links
> The issue would be: was your communicative
> 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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btr1701 (profile), 9 Jun 2010 @ 8:15am

Re: Re: Re: Links
> No trial will apply tests of defamation or
> 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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Bozo Comment, 10 Jun 2010 @ 5:19am

Re:
Federal judges will NEVER NEVER be elected, thank your lucky stars. That's because the Founders wisely understood the importance of the independence of the judiciary. Thus, federal judges are appointed for life and confirmed by the US Senate. They cannot be removed except by impeachment and removal for treason, bribery, or other high crimes and misdemeanors.

That will never change. So deal with it.
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