Of Links and Libel

The act of posting a hyperlink is a simple one. You just type your <a href> tag and put the URL in, and then if you click on it, it brings you to a new website. An unsuspecting new webmaster running a site would never expect that such a seemingly harmless act could be so loaded with potential controversy. Yet, over the last several years as the Internet has become a more established part of society, links have been the subject of many a battle. Some site owners prefer that you never post a link to their sites, especially to content deeper than the home page, without permission. Other site owners would get angry if another site owner posted their links on a page designed to make someone else money. The possibilities are endless – and the answers to questions of linking rules are rarely simple.

Now, there's a new controversy brewing over hyperlinks and libel – and it's one that could get ugly. As the law currently stands, usually in libel charges, the charge is against the author of content. A case last year established that bloggers, for example, who post links to news stories, could not be held liable for the content of those news stories. It's fairly rare that a libel charge would be filed against someone other than the content author or the immediate publisher. However, one case is challenging that position. A women's health advocate named Ilena Rosenthal posted an opinion piece on a Usenet group, and she was then slapped with a libel suit for posting the piece. Rosenthal did not write the article in question; it was by another author. However, by posting the piece, the plaintiff alleges that Rosenthal was a "developer" of the content and was therefore liable for the harm to the plaintiff's reputation that could ensue from readers having seen the opinion piece on Usenet.

The lawsuit against Rosenthal arose after a reinterpretation of a section of the Telecommunications Act of 1996 by a California Court of Appeals that formerly prevented website publishers from being held liable for content they didn't write. Lawyers for Rosenthal are currently hoping that the California Supreme Court will examine the case and revert to the older interpretation of the law. However, should this lawsuit go forth, the implications could be far-reaching. It could reverse former findings and open up bloggers who post links to news articles for being held liable for comments within the articles. Additionally, webmasters whose sites have link directories might suddenly be considered liable for the content in the sites linked. Even discussion boards could become a loaded medium, with site owners potentially being liable for things written in forum posts.