What Is The Difference Between A “Naked Link” and a “Footnote”?

Naked Link Internet Libel
Online Defamation Law and Links

For what seems like since the Rat Pack headlined at the Copa Room, Casino kingpin Sheldon Adelson has been embroiled in a defamation lawsuit. From one court to the next, the Adelson libel lawsuit hops — motion by tedious motion. And now it looks like it all may come down to whether or not a “naked link” is considered a footnote, or more than a footnote.

The Reason Defamation Lawyers Are Keeping An Eye On The Adelson v/ NJDC Case: “Naked Link” Ruling

But, if you’re interested in the finer points of online defamation law, things are starting to get interesting in the Adelson case because it looks like it will turn entirely on whether or not a “naked link” is the equivalent to a traditional footnote.

Why Adelson Sued The NJDC For Defamation

Two years ago, the National Jewish Democratic Council (NJDC) – hoping to make their mark on the presidential election – published an online petition urging Mitt Romney not take campaign contributions from Adelson. The appeal painted Adelson as a morally corrupt shyster who allowed prostitution in his overseas resorts and funneled foreign money into campaign coffers.

Got Information From Another Lawsuit

Where did the NJDC get their info? An unfair termination lawsuit filed by a former Sands executive, which was linked to at the bottom of the online petition. Adelson insists the case on which the claims were culled is merit-less, thereby rendering the accusations defamatory.

District Judge: Naked Link Is A Footnote And Not Defamatory

Judge Paul Oetken was the first district court judge to hear the case; he ruled in favor of the defense. Oetken simply reasoned that the link to the Sands employment lawsuit is the “twenty-first-century equivalent of a footnote” and therefore not defamatory.

Adelson was ordered to pay attorneys’ fees for violating the state’s Anti-SLAPP law.

Appeals Court: We’ve Got Some Thinking To Do About “Naked Links” & Online Defamation

Then came the appeal.

Admittance of Antediluvian Internet Understanding

A three-judge panel presided. At the hearing, octogenarian Judge Guido Calabresi copped to his “’antediluvian’ understanding on the Internet.” Another panelist, Judge Denny Chin, also voiced confusion as to why the hyperlink is not considered “better” than a footnote.

Lawyers for Adelson asked the court to certify a pair of questions, one of which is: does a “naked hyperlink” qualify as a “footnote” for the purposes of an online defamation lawsuit, or is it more?

In an effort to convince the courts that hyperlink citations are a good thing, a lawyer from the defense urged,   “In the 21st century, we want to encourage people to do what we did in this petition, which is including the hyperlink [naked link] as a valuable tool for expanding human knowledge.”