New York Federal Court Rules Hyperlinks to a Reliable Source May Be a Defense to Defamation Claims

Author: Michael C. Jacobson, XpertHR Legal Editor

November 6, 2013

Employers may have a defense to defamation claims if they include hyperlinks to authoritative sources in their social media activities, e.g., blogging, Facebook posts or "tweeting", according to a New York federal court in Adelson v. Harris, 2013 U.S. Dist. LEXIS 141053 (S.D.N.Y. 2013).

The ruling is significant for employers, given that they can be held directly responsible for employee social media activity that is performed on behalf of the employer, at the employer's request or within the scope of an employee's job, and which harms the reputation of individuals. This is of particular concern to employers in an age when up to 50% of employees use social media at work to improve productivity and effectiveness.

In the Adelson case, the employer, the National Jewish Democratic Council, published a webpage which asserted that Sheldon Adelson, a prominent businessman and Republican Party booster, "personally approved of prostitution" in his casinos located in Macau, China. The publication was an effort to discourage then-Presidential candidate Mitt Romney from accepting donations from Adelson to his campaign, but it was removed by the employer eight days after publication, at which time it issued an apology.

Thereafter, Adelson filed a claim for defamation against the employer, arguing that the website had maliciously damaged his reputation. In defense, the employer argued that the webpage linked to an Associated Press story mentioning Adelson's alleged approval of prostitution in his casinos as a source of authority.

The court held that the hyperlink to the Associated Press story was sufficient to defeat the defamation claim because it helped establish that the publication was not false or misleading - an essential element of defamation claims. Specifically, the court ruled that the "hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law." In fact, the court indicated that hyperlinks are potentially better than footnotes because they do not require a "sojourn to the library" to determine accuracy.

Interestingly, this protection may even extend to links to sources that no longer work (known as "link rot" or "dead links" in web parlance) so long as the employer can demonstrate that the link was live and accurate at the time of publication.

Given the prevalence of social media in the workplace coupled with the potential exposure to defamation claims, employers should educate their employees regarding responsible social media use and proper attribution if they assert facts as opposed to opinions when engaging in social media activities on behalf of the employer or when they use social media within the scope of their employment. Importantly, restrictions on social media use should extend to posts about celebrities and private individuals alike, as any individual could assert a claim for defamation if a social media post is false and damages his or her reputation.