Defamation and Copyrights in Hyperlinks and Blogs
By: Clark, Campbell, Lancaster & Munson, P.A.
Q: Can my business get in trouble for sharing third-party content on its website and social media page?
A: Yes, in a few contexts. In the event that the content was originally printed by a person who holds the copyright, reprinting the content on your own page is infringement. You may be forced to remove the content and pay statutory amounts and other “damages,” including the profits lost by the copyright holder and the profits obtained by the infringement.
But perhaps less obvious is what happens when you share content that was itself wrongfully shared. A common example of this would be third-party content that contains defamatory statements (i.e. damaging falsehoods). More local businesses pop up on social media and elsewhere on the internet daily, frequently sharing and linking to third party content. But the linking businesses have no control over the third party site, which might change without warning and contain defamatory or copyright-infringing content.
Courts are leaning towards protecting page owners who simply link to content as opposed to copy it. Consider, first, a blog that offers commentary and frequently block quotes sources. That blog reprints segments of other persons’ statements, whether made online or on other media. One such segment, hypothetically, contains a libelous accusation. Whether the blogger is reprinting the segment to support the accusation, prove that it is incorrect, or comment on a different portion of the quote, he has nonetheless “republished” the defamatory statement to a new audience. Under the law of defamation, he might be held liable to the wrongfully accused person even though the blogger did not make the original statement and even though the blogger might have had the good intent to show the falsity of the statement.
On the other hand, if the blogger prints a more neutral segment of a libelous article or simply hyperlinks to it, he has not actually republished the false statement. He has, in any event, called the existence of the statement to the attention of a new audience and provided an additional pathway to access the content. Nonetheless, courts are concluding that such provision of attention and access to the existence of defamatory content is not itself the type of “affirmative act” of spreading damaging falsehoods that the law should prohibit.
Courts similarly tend to agree that merely linking to another website usually does not itself infringe copyrights nor give rise to the type of consumer confusion necessary for a trademark infringement claim. However, if the linking page author has reason to believe that he is linking to infringing content, the court might venture into the land of “contributory infringement” to find liability.
Businesses should be careful to consider these issues when linking to and “sharing” content on their websites and social media pages.
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