back to article Links to blog in email made sender liable, says US court

A US bankruptcy court has said that a man committed defamation just by forwarding an email with links in it to online material that was defamatory. The court said that the man 'published' the blog to his email recipients. The US Bankruptcy Court for the Southern District of Texas was dealing with the bankruptcy of William …

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  1. LuMan
    Stop

    Next stop, common sense - all change!

    So, by that rationale, if a newspaper prints a libelous comment, and that newspaper gets delivered to a house, the paperboy (or girl) can be sued for 'publishing' the document? If I send a threatening letter to someone by post the blame automatically goes to the postman (or woman) for 'publishing' the note?? Where will this end?? As an analogy, if an assassin uses public transport to travel to his next hit, can the transport comany be charged with aiding and abetting?? Didn't think so.

    Utter, utter, utter codswallop!

  2. Graeme Attkins

    Surely...

    This means that any search engine that linked to the blog posts is also culpable of defamation.

    Judgement seems blinkered to me - and I'm sure we'll hear that it's been successfully appealled soon.

  3. Anonymous Coward
    Anonymous Coward

    Land of the free?

    Land of the "keep your mouth shut" more like.

    What happened to you America? You used to be cool...

  4. Colin Miller
    WTF?

    Printed paper analogy

    Does that mean if I hand out fliers reading "Check this week's 'Melchester Snooper' - it contains an interesting exposé of what our councillors are up to', I become legally liable for what the Melchester Snooper printed?

    That's wrong on so many levels.

  5. Terry Ellis

    How does this compare to say...

    ...including a list of references in a journal paper?

    Isn't including a hyperlink in an email essentially the same thing as having a reference list? And is there a difference between including a link in an email and copying verbatim from the blog in to the body of the email?

    I sympathise with the EFF's alarm on this one.

  6. Mike Holden

    Big difference

    There's a big difference between what a search engine, paperboy or postwoman does, and me specifically sending a single link to an article to somebody.

    The search engine, paperboy and postwoman have no direct connection to the content they are delivering, they serve it up "blind", without analysing the contents in any relevant way. This kind of service is generally exempt from such laws for good reason.

    Comments about bus drivers and assassins are clearly patent nonsense, and the poster should be ignored.

    On the other hand, if I deliberately send a link to a libelous article, then I have done it with full knowledge of the content of that link, and am in effect the publisher of those words, because I clearly took a deliberate decision to pass on those specific words to a specific recipient list. There is therefore a clear statement of intent on my part that I stand by what is said in the article.

    Seems like a fair ruling to me.

    1. Graeme Attkins
      FAIL

      So...

      If you were compiling a report of slanderous content on the web to alert the high-heid yins in your company, you'd be publishing the content by default, making it easy for your own company to sack you for defamation.

      Obviously, this would not be the case if you were compiling the report at the request of your manager, but if you did it off your own back, HR could conceivably send you packing.

      I'm still of the opinion that if you are citing a source, you cannot be held responsible for what that source says - otherwise every time we based our opinions on what we read/find in the media (in whatever terms) we'd be liable for defamation by the individual/company/organisation about whom anything had been written.

    2. lglethal Silver badge
      FAIL

      Dont agree

      Sorry Mike, i dont agree.

      Assume for a moment that you discover online an article written by a journalist stating that the CEO of your company is involved in embezzlement & money laundering.

      By your reading of the law, your passing of a link to that article to the board of directors would be defamation and you would be liable. However, i would argue that if you discovered such an article it is your moral duty to pass that article across to the board as if its true, you, your co-workers and the investors are likely to wind up out of jobs and out of pocket!

      By your reading of the law, a person must conduct there own investigation of the facts in the article first to determine whether its accurate or not, before you can ever link to the article. This seems patently ridiculous to me. If a journalist or blogger makes defamatory statements online they had better have the evidence to back up what they say. If not, for sure they should be sued for defamation. But to sue someone for posting a link is ridiculous.

    3. Captain Save-a-ho
      FAIL

      Au contraire

      Mike, if someone were to give you a newspaper and tell you that there's a libelous article on page 7, would you sue them for defamation? That's the same principle.

      I have two major problems with the logic used in the decision:

      1. While I'm not aware of the legal definitions involved, I know that public communications (i.e. publication) and private communcations are not the same thing, in realistic terms. How does sending a private email affect the general public opinion of someone to the point of defamation?

      2. Intent is virtually impossible to discern when the actions are not so self-evident. For example, striking another person in the head with a lead pipe is pretty clear cut intent. Can the same really be said for including a link to an article in an email? How can you know the article was read and understood by the sender? How many times have you or someone you've known sent an article to a friend just from reading the headline or abstract? Not sure there's any way to clearly know the intent of the emailed link without more actions to demonstrate things clearly.

      It's still possible that the state laws in use in the case provide for wider interpretation, but that a tremendous shame if it turns out to the case. And there's absolutely nothing fair about a ruling based on incorrect notions of what is public and what is clear intent.

      1. LuMan
        Thumb Down

        @Mike

        Quite evidently the poster hasn't been ignored in this case and the number of thumbs-down seem to indicate that, with every best intention, your viewpoint is not with the mainstream.

        Making the sender of a link responsible for the content held therein is totally unfair on many levels. Most notably the fact that digital media can be altered or changed in the timespace between the link being sent and the recipient actually viewing the content. Let's take an extreme example; I see a blog some bloke created relating to his holiday. In the blog is a picture of a group of bikini-clad Hooters girls. I send this on to a group of recipients with a note saying "check out these hot chicks". Before the last recipient gets 'round to reading the blog it's been updated and now shows the bloke's 3-year-old daughter in dancing class. By your thinking this makes me a paedophile, despite me having NO control over the blog content.

        Sorry, Mike, I just can't bring myself to take your point of view on this.

  7. Robert Carnegie Silver badge

    I suppose that if Perry intended to denounce Wallace, then he can be found to have defamed him.

    Assuming that indeed Wallace isn't a good friend of Mark Thatcher et cetera. (If anyone said I was a good friend of Mark Thatcher I'd probably get cross.)

    Maybe he should have commented on the link while "e-mail"-ing it (are we talking about a blog comment form??) Do the Fox News thing of "Isn't it interesting that according to this blog ,chickens are delivered regularly to President Obama at the White House for possible use by him in voodoo ritual", when the blog is by either a crazy person or a Kentucky Fried Chicken delivery guy. Hypothetical example. Uncommented, you're asking people to take it as though it came direct from you. Say that it's interesting and it's fine. "Isn't it interesting that Sarah Palin's bazooms look particularly fine this week."

  8. Chris Hatfield

    This defies belief!

    These Texas Court employees are morons. Actually, they cannot be that stupid. I suspect corruption

    1. Anonymous Coward
      WTF?

      I also suspect corruption.

      I was scratching my head thinking WTF.

      Then they mentioned that the Mayor was involved and it all became clear.

      These good ol' boys don't half stick together.

  9. Anonymous Coward
    Anonymous Coward

    Do I sense...

    ...Kent Police drooling?

  10. Graeme Attkins

    Tell-A-Friend (and get sued)

    I'm also just wondering if sites with Tell-A-Friend forms will be counter-sued by visitors who made use of the form, and it was later found to be libellous/defamatory content...

  11. The First Dave Silver badge
    Megaphone

    Intent

    What isn't mentioned here, is whether or not Perry actually believed the article himself. If it could be proved that he knew it was false, and that his reason for passing it on was to propogate that falsehood, then it was probably a fair decision. On the other hand, note that the contrary decision was from an appeal court - good chance that the same thing will happen here.

  12. Titus Aduxass
    WTF?

    To blazes with titles

    Surely the "defamatory" material being linked to in the e-mail has to be proven (in court) to be defamatory.

    The sender of an email with a link to the offending material would only become guilty (of "publishing" defamatory material himself) when the linked-to material is proven to be defamatory.

    That's madness.

    How is one to know whether a something you are linking to will be subsequently prove to be defamatory?

  13. Anonymous Coward
    Anonymous Coward

    They're all barmy.

    Yanks that is.

    From a nation that was, 200 years ago, a bright symbol to the world, they've degenerated into a mindless blame culture and military empire-building. It's almost prostitution.

  14. The Indomitable Gall
    Stop

    Hmm....

    ""We conclude that section 230 prohibits 'distributor' liability for Internet publications," said that ruling. "We further hold that section 230(c)(1) immunizes individual 'users' of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal's judgment."

    "No practical or principled distinction"... how so? The Usenet woman specifically chose that piece to upload, so she is (in practice and in principle) publishing.

    ISPs are protected on the grounds that they are effectively functioning as printers and/or distributors do in the paper-based world, controlling the medium rather than the message.

    In the physical world, a white van man who delivers boxes of magazines to local newsagents doesn't have to read every one to look for infringing content. He doesn't even have to know the titles of the magazines for delivery.

    No choice, no editorial control, no volition.

    The Usenet case had volition. Maybe the woman should have won on other grounds, but she spread the content of the article of her own volition, so she was not a mere "distributor".

  15. Tom 13

    Too much missing information to draw any conclusions

    It isn't clear from this article of the links what the nature of the forwarded email was. If 1) the forwarded email linked specifically to the defamatory posts, and 2) the initial email was itself defamatory, and 3) the forwarder made no attempts to refute the defamation, then I would hold the forwarder intended to publish defamatory remarks. On the other hand, if it was merely to the home page of a blog, I wouldn't.

  16. Anonymous Coward
    Anonymous Coward

    So...

    If I were to advise you to read a particular newspaper today and that paper carried a article which was later held to be libelous then under Texas law I would be guilty of libel because I had published the article by recommending that you read the paper.

    Are all Texans fuckwits or just the judge in this case?

  17. Anonymous Coward
    Anonymous Coward

    A Digital Watch?

    I remember a call a while ago for judges to be trained in IT and the internet in order that they didn't misunderstand the technology and as a result make stupid judgements. Unfortunately the call was not heeded.

    This is yet another case that remind me of that old NTNON sketch.

    "A video cassette recorder? What on earth is a video cassette recorder?"

    "A video cassette recorder, You Honour, is a machine that allows you to record television programs on special tapes."*

    etc. etc.

    * Apologies to Not the Nine O'Clock News pedants if I'm not quoting correctly.

  18. Anonymous Coward
    FAIL

    Can someone say goatse?

    What about if I email a friend a link, in between me checking the link (maybe as I'm about to send), and the friend opening it, the legitimate blog post gets updated/replaced with defammatory blog post or obscene image, US court would hold me responsible for the site's new content?

  19. heyrick Silver badge

    District of Whatever, Texas = Bogus decision; and we're surprised?!?

    (that's all)

  20. TkH11

    @Mike Holden

    I disagree with your analysis.

    The person who should be subject to the defamation claim is the person that wrote the original text, whether that be an email, a paper document, or an online article.

    They're the one's that wrote the text and they should be responsible, accurate in what they say.

    If someone hands me a document written by an author that slanders someone, I don't, I can't hold the person who acted as the mailman, to account, he didn't write the document. Surely the resonable thing here is that I sue the guy that wrote the document in the first place.

    Is it not the same with web links? If some guy sends me a few links, he's acting as that post man, and it's my choice whether or not I go to those links.

    If i find defamatory content on the webpage whose link is in the email, surely, the logical approach is that I sue the guy who wrote the original text on the website?

    It matters not what was in the mind of the guy sending me the web links in the email. We're then getting into the area of speculation and what was in his mind when he sent me the email.

    You can only sue the guy that wrote the original article. Or that's how it should be in my opinion,

  21. TkH11
    Happy

    Law is an ass

    The problem here is so often what happens, the judges try to apply a law that wasn't written for the modern day electronic age.

    And most judges aren't even IT literate anyway, so how can they be tasked with writing laws that relate to the use of information technology when they don't understand or use the medium frequently.

  22. Anonymous Coward
    FAIL

    What if I point to the Internet or Google

    http://www.google.com/search?q=Perv+[Your Name Here]

    Sue me.

  23. Robert Carnegie Silver badge

    "You can only sue the guy that wrote the original article. Or that's how it should be in my opinion"

    My parents used to read the Daily Express, I didn't know any better... for many years, maybe still, it had or has a gossip page credited to William Hickey.

    The William Hickey that presumably they had in mind died in 1830.

    Good luck sueing him, but if I set about intentionally and specifically redistributing "his" allegations about you and Edwina Currie further, then surely that's my responsibility, and not the guy from the 19th century. Maybe I wrote it myself in fact, or maybe the outrageous political blogger "Guido Fawkes" did (1570-1606), but Guido Fawkes isn't the one posting photocopies of it through your neighbours' letterboxes. I am. See you in court!

    ...Sorry, did I say you and Edwina Currie? I'm sorry, I meant John Prescott.

    I woulon't want to be you if his missus finds out.

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