United States: Digital Defamation Update: Recent Decisions Highlight Issues With Tweets, Hyperlinks

Last Updated: November 24 2015
Article by Brian Willett and Justin H. Werner

The rapid spread of social media sites has opened up unparalleled opportunities for voices that might have once gone unheard to resound across the world. While these channels can be undeniably advantageous in many contexts, the rapid spread of speech has caused new problems for courts dealing with defamation claims. On the same day earlier in November, two courts on opposite sides of the nation weighed in on issues of digital defamation.

Franklin v. The Daily Holdings, Inc.: Partially Quoted Tweet Can Give Rise to Defamation Claim

In New York, the Supreme Court, Appellate Division held that quoting out of context part of a message posted on Twitter could give rise to liability for defamatory speech, and that the "own words" defense to defamation claims would not insulate the defendant under the circumstances. As the opinion in Franklin v. The Daily Holdings, Inc., No. 155454/13 (N.Y. App. Div. Nov. 12, 2015) indicates, while pulling quotes from Twitter may be commonplace, it can lead to problems – particularly if the proper context is not established.

In Franklin, the plaintiff was a popular DJ who worked at a number of well-known and exclusive venues, including the club WIP, where a highly publicized fight between the entourages of Drake and Chris Brown broke out. The plaintiff was not working that night, but following the incident tweeted: "I was gonna start shooting in the air but I decided against it. Too much violence in the hip hop community."

The WIP incident received much media attention, inspiring, inter alia, an article by defendant, The Daily Holdings. The article provided a detailed, ostensibly eye-witness account of the Drake-Brown incident, and a section containing plaintiff's description of the fight ended with only the first sentence of his tweet ("I was gonna start shooting in the air but I decided against it.").

Plaintiff took umbrage and brought libel and libel per se claims against defendant, noting that the publication had taken an anti-violence tweet and twisted it to falsely suggest that he (1) was armed on the job; and (2) spoke to the press about what he saw at exclusive venues and events. According to plaintiff, this defamation "devastated" his career. In his words, "by failing to publish his full tweet, [defendant] changed it from one eschewing violence, to one that made it look as if plaintiff were a 'gun-toting psychopath with an itchy trigger finger.'"

The Appellate Division characterized the issue as "whether plaintiff can adequately allege that the statement is 'false' when it is an accurate quote from his public Twitter account and was initially published by him." The court noted that the quoted portion could have "produced a worse effect on the mind of a reader than the truth as alleged by plaintiff," and could be defamatory. Further, the court reasoned that although the "own words" defense, which precludes liability for accurately quoting another's statement, has not been adopted in New York, it would not apply "where a comparison of the two statements reveals the potential for them to have different effects on the mind of the reader."

Life Designs Ranch, Inc. v. Sommer: Hyperlinks Are Not Republications, Don't Give Rise to Defamation Claims

Meanwhile, on the West Coast, the Washington Court of Appeals found the owner of a website could not be liable for linking to potentially defamatory content posted on a different website, as the link did not constitute a republication for defamation purposes.

In Life Designs Ranch, Inc. v. Sommer, No. 32922-4-III (Wash. App. Nov. 12, 2015), the defendant created a website raising his concerns with the Life Designs Ranch, Inc. substance abuse program. Defendant intended the website to "protect people from the financial and emotional distress that comes with attending Life Designs Ranch," and wrote that "[h]ealing is not done" at the program. Defendant's website also linked to the Human Earth Animal Liberation (HEAL) website, which claims the program, among other things, is "run like a cult" and "illegally exploits student labor."

The trial court found that plaintiff's claim for defamation per se failed as a matter of law, and the Washington Court of Appeals agreed. First, the court found that the statements on defendant's website did not rise to the "extreme" level of speech required to constitute defamation per se.

Next, the Court of Appeals turned to whether the website content authored by defendant constituted defamation. Finding that defendant "did not attempt to pass his website off as Life Designs' official website," used words such as "seems," and clearly linked to the official website for Life Designs Ranch, the context indicated defendant's website fell more on the opinion side of the fact-opinion distinction. The court also observed that the "internet is a medium where statements expressing opinions in the context of reviewing businesses and services are often found," and that as a matter of policy, "allowing businesses to sue any unhappy consumer for what they posted online for defamation would stifle freedom of speech."

Finally, the Court of Appeals addressed an issue of first impression: whether "publishing the hyperlink to an allegedly defamatory website alone constitutes republication of that defamatory content to third persons reading [defendant's] website." The court noted Washington's adoption of the single publication rule and reasoned that "[b]ecause a hyperlink is more like a reference than a separate publication," the link should not be treated differently than a mere reference, which is not considered republication. Conversely, to find a republication, defendant would have had to communicate the contents of the HEAL website, rather than just reference it. In other words, drawing an audience's attention to the existence of previously published content is distinct from actually presenting that content in the defamation context.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions