Defamation As Easy As the Weakest Link?

Part of the challenge associated with the internet is for the judicial system and insurance industry to try to keep pace with the discovery of new ways that people can get into trouble through technological innovations. Linking, using a hyperlink to take a browser from one place on the internet to another, can be one way to get into trouble that really wasn’t dreamed of just 10 or 15 years ago.

We’ve seen linking cases involving intellectual property concepts, like copyright and trade secrets. But Robert Ambrogi reports on his Media Law blog about a linking situation with the New York Times website that sounds more like a potential defamation case – a situation we can’t remember having seen before.

The Times was writing about the indictment of Anthony Pellicano, the so-called private eye to the stars, on charges that he masterminded a ring that illegally wiretapped the targets of his investigations and obtained criminal background checks on them from a restricted government database. The Times story named several people who prosecutors say helped Pellicano, including a police officer and a telephone company worker who earlier pleaded guilty.

Ambrogi reports that the problem is the names of the police officer and phone company were links. When one clicked on their names, the browser went to bio pages for people who almost certainly were not the individuals referenced in the Times story. For example, the Times reported the police officer who pled guilty is 45 years old, but the link took the reader to the biography of an actor born in 1918. That very fact may provide a defensive weapon in a defamation case, but who wants to have to be defending a case?

The situation seems similar to misidentification cases that have occurred in other contexts through the years in traditional press outlets, such as using the wrong photograph or video in conjunction with the correct text or script when dealing with criminal or very personal and private matters.

By the time we checked the Times article, no links were associated with the names in question.

Although this situation involves a media outlet, many non-media companies have a web presence and employ linking in their content. Facts like these serve as an example of one of the many peculiar ways that companies can unexpectedly get into trouble on the internet. We hesitate to opine on coverage in general examples because one fact can change the picture entirely. Generally speaking, though, the odds are pretty good that a decent internet E&O liability policy would cover this kind of scenario should a claim ensue. Most such policies cover defamation and online activities. A linking case leading to some intellectual property claims might be different, such as a trade secrets case since most E&O policies provide no coverage for trade secret claims.