European Court Asked To Overturn Ruling Saying Linking To Defamatory Content Is Defamatory

from the neither-publishing-nor-republishing dept

It seems like common sense. The person legally responsible for defamatory statements is the person making the defamatory statements. But since pursuing that person often seems too difficult, legislators, courts, and disingenuous plaintiffs have engaged in mental/litigious gymnastics in hopes of finding third parties responsible for the statements of others.

We've seen a long list of lawsuits filed against service providers in response to defamatory content hosted on their platforms. We've seen courts -- mostly outside of the US -- convert third-party platforms into "publishers" for the sake of delisting/content removal court orders. We've seen numerous attempts to avoid Section 230 defenses by recrafting defamation lawsuits as trademark infringement litigation.

We've even seen some bad lawmaking, attempting to strip away protections for service providers to make it easier to hold them responsible for the actions of others.

The European Court of Human Rights is in the middle of another attempt to hold third parties responsible for the allegedly-defamatory statements of others.

The applicant in the case before the Court, Aleksey Navalnyy, is a prominent Russian political activist and opposition leader who sought to highlight the corruption that Mr Magnitsky had exposed. With this in mind, he posted a link on his LiveJournal blog to a YouTube video reporting on the 5.4 billion RUB tax refund. A Russian court held that the video was defamatory of an individual referred to in the report. The court found Navalnyy liable for statements that were made in the video as if they were his own, and ordered him to pay 100,000 RUB (approximately 1,400 GBP) in damages to the individual.

European courts and politicians have made efforts before to find those posting links to certain content just as liable as those who uploaded it. Previous attempts have mostly been related to copyright infringement, but this case isn't an anomaly in terms of holding one person responsible for someone else's statements.

The briefing [PDF], composed by a number of internet free speech activists, including the EFF, Access Now, and the Media Law Resource Centre, points to a number of precedential decisions from all over the world that make it clear the original defamer is the only one who should be found culpable for defamatory statements. To do otherwise is to threaten the basic operating principles of the internet, and the public discourse it facilitates.

Given the ubiquitous operation of hyperlinking on the Internet, it is an impermissible interference with Article 10 for the use of hyperlinks to be capable of giving rise to liability in defamation;

Given the dynamic nature of the content on the Internet to which hyperlinks may provide access (but over which the poster of the hyperlink is unlikely to have control), attaching liability in defamation to the provision of hyperlinks risks a particularly pronounced chilling effect on freedom of expression in violation of Article 10

It also points out the court shouldn't hold bloggers to a higher standard than journalists by robbing them of the protections afforded to traditional press agencies.

Defences that are available in law to the traditional media should also be made available to bloggers and online news sites – the formal designation of persons should be immaterial for the purposes of Article 10 rights in this context.

If the ruling is upheld, linking to other sources will dry up, both in traditional media and blogging. To link to statements of others would be to assume culpability for those persons' statements. Information would cease to flow as journalists and bloggers erect protective silos of info, generated from single sources. This end result would make those journalists and bloggers appear less trustworthy, as they would be unlikely to link to supporting statements and evidence if there's even a small possibility those sources might become a subject of litigation in the future.

Then there's the very real issue of content control: those linking to others can't prevent alteration of the content they're linking to, which may change drastically in tone and substance without the linker ever being made aware of the alterations. Just ask anyone who's hotlinked an image, only to find it replaced with something embarrassing/hideous/both in response to the inconsiderate usage of someone else's bandwidth.

Linking to other sources allows readers to gather more information and come to their own conclusions. Eliminating this makes information dissemination worse and further solidifies existing echo chambers. It's a bad thing for the internet and would result in less informed users.

Filed Under: aleksey navalny, defamation, eu, europe, european court of human rights, linking, russia, simon magnitsky