In an opinion today, Judge Oetken dismissed a defamation suit brought by GOP donor Sheldon Adelson because (among other reasons) the allegedly defamatory language hyperlinked to an AP article about a lawsuit, and thus constituted a privileged “attribution” of the assertion to a judicial proceeding. The suit related to an online petition entitled “Tell Romney to Reject Adelson’s Dirty Money.” The petition stated that Adelson “personally approved of prostitution in his Macau casinos,” and the words “personally approved” linked to an AP article reporting on a lawsuit that made the accusation. Judge Oetken found that the hyperlink was sufficient for the attribution privilege:
The hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute to a source. [Adelson argues] that a footnote constitutes sufficient attribution but a hyperlink does not, because the former “is actually part of the four corners of a publication, and does not require external navigation.” But this contention is premised on a type of formalism that is misplaced in Internet defamation law. While it is true that one can verify a hyperlinked source’s content only through “external navigation,” it takes just as much “external navigation” to verify the content of a footnote or endnote. As compared to a footnote, which can often be verified only via a sojourn to the library, the verification of a hyperlink is far from onerous. Nor is there any reason to believe that a footnote is read more frequently than a hyperlink is clicked on. Moreover, protecting defendants who hyperlink to their sources is good public policy, as it fosters the facile dissemination of knowledge on the Internet. It is true, of course, that shielding defendants who hyperlink to their sources makes it more difficult to redress defamation in cyberspace. But this is only so because Internet readers have far easier access to a commentator’s sources. It is to be expected, and celebrated, that the increasing access to information should decrease the need for defamation suits.