Hyperlinking Of Defamatory Article Can Attract Liability As Republication In Some Cases : Delhi High Court

The Delhi High Court has passed a ruling adjudicating the question as to when will hyperlinking of a publication would amount to republication.“If the hyperlinking of a publication is done in a manner in which it refers to the content that conveys defamatory meaning, not because a reference was created, but because, if understood in context, it actually expressed something defamatory, then it would amount to republication,” Justice Purushaindra Kumar Kaurav said. The Court said that the mode, manner and context of hyperlinking must reveal an element of independent expression, even if subtle, in addition to the mere act of hyperlinking, for it to constitute republication. “However, there can be no straight jacket formula to determine whether the hyperlink is just a reference or it is a republication. The same would have to be seen bearing in mind the facts and context of each case,” the Court said. It adjudicated the question in order to balance the competing interests of the freedom of speech and expression and the laws of defamation in the digital world. The Court held that if the hyperlinking of the defamatory article is done enabling the reach of the defamatory article or publication which has the potential of hampering the reputation of the defendant, then it would amount to republication.“Furthermore, if the hyperlinking does not merely make a reference to the earlier article, rather, it essentially repeats, redefines, explains, paraphrases or endorses the content of the earlier article, thereby giving a fresh impression and refreshing the memory or otherwise emphasizing to the reader about the defamatory content of the earlier article, thereby having the potentiality to hamper the reputation of the defendant, then it does not amount to a mere reference, rather it amounts to republication,” the Court said.Justice Kaurav made the observations while dealing with a defamatory suit filed by OFB Tech Private Limited against magazine “The Morning Context” over an article published titled “the work culture of OfBusiness does not like to talk about” in 2023. It was OFB Tech's case that since the article was re-published by way of hyperlink in an article published in 2024 (titled: OfBusiness co-founders and management allegedly assaulted an employee, says FIR), a fresh cause of action arose in the present case. The Court observed that on one hand, putting every hyperlink under the umbrella of republication would amount to having a chilling effect on the efficiency and fluidity implicit in the nature of the internet, while on the other hand, equating every hyperlink as a mere reference and thus, putting it outside the ambit of republication, would give a blanket cheque in the realm of the digital world to disseminate the defamatory content.“A hyperlinker may or may not be liable as a re- publisher and the determination would eventually depend upon the context in which the previous publication has been hyperlinked, the content and manner in which hyperlink occurs in the publication, any subtle implication or endorsement or repetition having the potential effect of targeting the reputation of a person etc. will be the predominant factors to be considered,” the Court said.Perusing the hyperlinked article published in 2024, the Court said that the hyperlinks were not employed as mere references, but rather, they serve as integral components of the alleged defamatory construct woven by The Morning Context.The Court said that the manner in which The Morning Context embedded the hyperlinks, their strategic positioning within the article, and the linguistic cues employed to direct the reader's attention towards them, point to a concerted effort to sustain and propagate an alleged defamatory narrative against OFB Tech.“Such deliberate structuring of the article, when viewed holistically, demonstrates that the defendant has actively sought to bolster its allegations by interweaving past publications within the article dated 07.10.2024, ensuring a sustained and continuous alleged defamatory impact upon the reputation of the plaintiff,” the Court said. It held that the publication of article published in 2024, which hyperlinked the impugned article, amounted to republication of the alleged defamatory article and thus, gave rise to a fresh cause of action. On the aspect of grant of interim injunction, the Court observed that The Morning Context reported on the work culture of OFB by citing specific instances and testimonies, thus invoking the defences of truth and fair comment.It observed that at the preliminary stage, the issuance of an injunction would be prejudicial to the rights of the parties involved, who must be afforded an adequate opportunity to substantiate their respective claims within the framework of a comprehensive trial. The Court said that an injunctive relief at this stage would amount to taking away the right of The Morning Context to prove that the content published by it was justified and based on...

Hyperlinking Of Defamatory Article Can Attract Liability As Republication In Some Cases : Delhi High Court

Nupur Thapliyal

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