Free for a Fee

An activist group posted an online petition urging then-Presidential candidate Mitt Romney to reject Nevada billionaire Sheldon Adelson’s campaign contribution. The petition linked to an AP story, which in turn linked to a court filing alleging that Adelson OKed his hotel empire chasing prostitution revenues. Adelson claims the petition defamed him. The defense won in the district court (my prior blog post) based in part on the fair reporting privilege to defamation, which gives extra protection from defamation for reporting on court filings.

On appeal to the Second Circuit, the court certified two questions to the Nevada Supreme Court, including:

Does a hyperlink to source material about judicial proceedings in an online petition suffice to qualify as a report for purposes of applying the common law fair report privilege?

Because the petition linked to the AP story, not directly to the court filing, the Nevada Supreme Court rephrased the issue:

we must consider, as an issue of first impression, whether a hyperlink in an Internet publication that provides specific attribution to a document protected by the fair report privilege qualifies as a protected report for purposes of that privilege.

(Only a lawyer could write a sentence like that!)

In a sentence that could have been written at the turn of this century, the court starts by celebrating the virtues of a hyperlinked web:

Hyperlinks provide strong attribution because they allow direct access to underlying materials, are intuitively easy to use, and are extremely prevalent online. A reader can click on a hyperlink and immediately determine whether official proceedings are implicated.

But not everything is aces with hyperlinks:

However, there is a drawback to hyperlinks as attributions—an average reader must identify a hyperlink, understand its importance, and ultimately open the link. When a hyperlink is not found, understood, or opened by a reader, it has failed as a source of attribution.

So the court is interested in whether readers will sufficiently notice any hyperlink to the source materials, prompting the court to digress into the “clickwrap”/”browsewrap” online contract formation rabbit hole, with cites to Specht, Nguyen, Zappos, & Fteja. With little gained from the digression, the court considers whether the petition’s link to the AP story was sufficiently prominent to readers:

Case citation: Adelson v. Harris, 2017 WL 4294562 (Nev. Sept. 27, 2017).

more

The content in this post was found at http://blog.ericgoldman.org/archives/2017/10/hyperlinking-to-sources-can-help-defeat-defamation-claims-adelson-v-harris.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.