Wikipedia:Hyperlinks as evidence in litigation

Hyperlinks can be used as evidence in litigation, and Wikipedia's practice of wikilinking (a form of hyperlinking) words and phrases to other relevant articles at Wikipedia may be a relevant defense in legal actions if Wikipedia or its editors are ever sued for defamation.

Background

In Gubarev v. BuzzFeed, Case 0:17-cv-60426-UU, a defamation case against BuzzFeed related to its publication of the Steele dossier on January 10, 2017, United States district judge Ursula Ungaro ruled in favor of BuzzFeed.

The case contains the following analysis (pp. 21-23) of hyperlinking, with mention of another defamation case involving hyperlinking. (Forms of the word "hyperlink" are also mentioned a few times earlier in the case.):

D. The Average Reader Would Conclude that the Dossier Was Subject to Official Action

         In its order on the motion for judgment on the pleadings, the Court ruled that an ordinary reader of the Article would conclude that the Dossier was subject to official action because the official action was described in the hyperlinked CNN article, and the hyperlink was conspicuous. D.E. 171, pp. 16–18. Analysis of the sufficiency of the hyperlink did not require facts beyond those already in the record, and so the Court’s ruling on that issue was final. See Aguirre v. Best Care Agency, Inc., 961 F. Supp. 2d 427, 457 (E.D.N.Y. 2013) (quoting Fine, 2013 WL 528468, at *3 (holding that where the parties have submitted the allegedly defamatory report to the court, it is a matter of law whether the privilege applies)).

         Central to the Court’s ruling was Adelson v. Harris, 402 P.3d 665 (Nev. 2017). There, the Supreme Court of Nevada held that a hyperlink to source material about an official proceeding rendered a report privileged provided the hyperlink was conspicuous. 402 P.3d at 669–70. Finding that Adelson aligned with modern journalistic principles, the Court adopted its reasoning. D.E. 171, p. 17. The Court went on to find that the hyperlink in the Article was conspicuous because “[i]t appears in the body of the Article, within the words ‘CNN reported,’ which are written in blue.” Id., p. 18.

         In their opposition, Plaintiffs essentially move for reconsideration of that ruling on the grounds that the hyperlink in Adelson was materially different than the hyperlink here and that the hyperlink here was not, in fact, conspicuous. Plaintiffs’ first argument is that because the CNN article did not reveal any official action as to the specific allegations in the Dossier concerning Plaintiffs, it was materially different from the hyperlinked article in Adelson. This is the same argument Plaintiffs raised with respect to each preceding element of the privilege, and the Court rejects it for the same reason. BuzzFeed is not required to show that there was official action with respect to each specific allegation concerning Plaintiffs.

         Plaintiffs’ second argument is that BuzzFeed was required to underline the hyperlink; it was not sufficient to merely put it in blue. Plaintiffs cite no cases standing for the proposition that a hyperlink must conform to such strict formatting requirements to be conspicuous. Cases (outside the defamation context)¹² have recognized that hyperlinks are typically blue and underlined, but they uniformly take a totality-of-the-circumstances approach when determining whether a hyperlink is conspicuous. See, e.g., Plazza v. Airbnb, Inc., 289 F. Supp. 3d 537, 552 (S.D.N.Y. 2018); Cullinane v. Uber Techs., Inc., 893 F.3d 53, 62 (1st Cir. 2018); Applebaum v. Lyft, Inc., 263 F. Supp. 3d 454 (S.D.N.Y. 2017) (coloring the hyperlink was not sufficiently conspicuous when the hyperlink was in the smallest font, and dwarfed by other much larger text on around it).

         The Court is satisfied that its previous ruling was correct. The hyperlink here is the same size as the text around it, it appears in the body of the text rather than hidden somewhere at the bottom or side, and it is the only blue text in the paragraph in which it appears. See D.E. 234-5, p. 143. Additionally, it is apparent from the face of Article that BuzzFeed used blue text to link to sources. The words that BuzzFeed chose to print in blue naturally suggest an outside link:

• “CNN Reported . . . .”;
• “Now BuzzFeed News is publishing the full document . . . .”;
• “Michael Cohen, told Mic . . . .”;
• “Kellyanne Conway[] also denied the claims during an appearance on Late Night with Seth Meyers . . . .”; and
• “David Corn referred to the documents in a late October column”;

Id. Lastly, at the end of the Article, BuzzFeed wrote: “To send us information confidentially, go here.” Id. The blue “here” is obviously a hyperlink and so underscores that the other blue words are also. In sum, given the totality of the circumstances, the Court finds, again, that the hyperlink was conspicuous.
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¹² Besides Adelson, the Court is aware of no hyperlink cases in the defamation context.

See also

• Litigation involving the Wikimedia Foundation
• No legal threats