Sender Liable for Email Links to Defamatory Content

by Katy Murcutt - Paralegal

11 June 2010, filed under Ecommerce

A US court had held that a man had committed defamation by sending emails to recipients which contained links to material of a defamatory nature. The court classed the sending of the email as publication of the material.

According to the Reporters Committee for Freedom of The Press (RCFP) the court, a bankruptcy court for the Southern District of Texas, stated that Mr William Perry had committed defamation by sending an email containing links to a blog. Mr Perry had not created the blog or commented in the email about the blog or links to such contained within his email. In accordance with Texas state law in regard to defamation, the sending of the links was sufficient to amount to publication.

The US court stated that Mr Perry had acted with intended disregard for the truth. The court viewed Mr Perry’s actions as reckless, and held that he had committed defamation by sending the email containing the links to the defamatory content to others.

William Perry originally worked alongside Texas mayor David Wallace. After their business partnership ceased, bankruptcy proceedings were issued against Mr Perry. Mr Wallace claimed that the emails contained defamatory content which defamed him.

This ground breaking decision has alarmed the Electronic Frontier Foundation (EFF) and other freedom of speech campaigners as the decision made by the US court directly contradicts a decision made by the Californian Supreme Court who ruled that a woman who had published an article on a website which had been written by a third party could not be held liable for the content of that article. At the time of this decision, the Supreme Court also acted to overturn the decisions of other courts by stating that the section of the law that refers to the protection of service providers from liability for third party content should be extended to cover individuals too.

In contrast to this however, Ilena Rosenthal placed a third party article upon a news group website and was subsequently sued for the articles content. Ms Rosenthal claimed she was protected by the Telecommunications Act but the courts disagreed despite the Supreme Court’s decision.

It would seem US law in regard to defamation has not yet settled into a customary and reliable position. The general standpoint seems to be that a claimant who wishes to contend defaming material that is present online must do so by seeking damages from the original source of the content and not a party who has merely re-published it.

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