Behind the Paywall: When Catchy Headlines Risk Defamation Claims

Can the headline for a news story located behind a paywall create defamation liability?

In defamation cases, the general rule is that a headline must be viewed in conjunction with the accompanying news article to determine whether a defamatory communication exists.  See, e.g., Hogan v. Winder, 762 F.3d 1096, 1108 (10th Cir. 2014) (“majority of jurisdictions hold that a headline cannot be severed from the body of the article when undertaking defamation analysis”). In most circumstances, a headline alone is insufficient to support a defamation claim if it is “a ‘fair index’ of the ‘substantially accurate’ material included in the article.” See, e.g., BYD Co. Ltd. v. VICE Media LLC, 531 F. Supp. 3d 810, 819–20 (S.D.N.Y. 2021), aff'd, No. 21-1097, 2022 WL 598973 (2nd Cir. Mar. 1, 2022).

This rule makes sense in the context of a conventional physical newspaper or magazine or even an online news article, where the headline immediately precedes the news story, such that the reader is able to easily read both in context.  However, where increasing numbers of people are utilizing online news sources that are brimming with catchy headlines designed to draw “clicks,” whether a reader is likely to see, or even have the ability to access, a story accompanying a potentially libelous headline may be more uncertain.  This uncertainty is particularly true in the case of news stories that can only be accessed through a paywall.   

A paywall is a feature used by websites, particularly news and media outlets, to restrict access to content by requiring users to purchase a subscription, pay a fee, or at least accept a free trial.  There does not appear to be a reported court decision evaluating whether a headline for a news article can independently form the basis for an actionable defamation claim where the accompanying article is behind a paywall.  Thus, future decisions on such claims will likely look to precedent created during the pre-digital age of physical newspapers and magazines. 

In a few cases, courts have held that a headline may be construed independently from its accompanying article, particularly where the substantive article is located far away from the headline.  One such case evolved from the highly publicized 1995 trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman.  See Kaelin v. Globe Commc'ns Corp., 162 F.3d 1036, 1040 (9th Cir. 1998).

Those who followed that story will recall that Kato Kaelin, a houseguest at the Simpson estate at the time of the murders, testified at trial.  Following Simpson’s acquittal, the National Examiner published an article with a front-page headline proclaiming: “COPS THINK KATO DID IT!”  The accompanying article appeared 17 pages away from the headline, and the front page did not include an internal page reference where the article could be located.  The news story discussed concerns of friends of Kaelin who allegedly worried that the police thought Kaelin may have perjured himself by not being completely forthright during his testimony.  The article did not indicate that the police thought Kaelin committed the murders, as the headline might otherwise suggest. 

The publisher of the Examiner argued that review of the entire publication, including the headline and full story, dispelled any false or defamatory meaning that could be interpreted from the headline.  The court held that a reasonable juror could conclude that the story was “too far removed from the cover headline to have the salutary effect” that the publisher asserted.  Kaelin, 162 F. 3d at 1061.

By analogy, an article that is behind a paywall and accessible only by payment of a subscription or other fee could be considered “too far removed” to ameliorate the injurious effect of a defamatory headline.  For courts that are willing to consider defamation claims based on headlines independently from the accompanying articles, an applicable consideration is “whether the article would ordinarily be read with” the headline.  Gambuzza v. Time, Inc., 239 N.Y.S. 2d 466, 470 (App. Div. 1st Dep’t 1963).  In Solano v. Playgirl, Inc., 292 F.3d 1078, 1083-84 (9th Cir. 2002), the court’s decision emphasized that the magazine containing the allegedly defamatory headline was displayed for sale while wrapped in plastic wrap, such that readers could not see the entire article unless purchased, “making the cover the key to what a reader can expect to find inside the magazine.”  The plastic wrap on a magazine may be akin to the paywall obscuring an online article. 

In Hogan v. Winder, 762 F.3d 1096, 1109 (10th Cir. 2014), the court held that a headline must be viewed in context with the article, where the article was easily accessible and “[w]ith one mouse click, any reader could access the full story and would readily realize the nature of the accusation.”  Such is not the case when the story is behind a paywall, at least for non-subscribers who have already exhausted their monthly allotment of free articles. 

Courts have long acknowledged that casual readers often only read the headlines and, thus, there has always been a danger that the full context of the accompanying article will not be conveyed.  See, e.g., Schermerhorn v. Rosenberg, 426 N.Y.S.2d 274, 283 (App. Div. 2d Dep’t 1980) (“A headline is often all that is read by the casual reader and therefore separately carries a potential for injury as great as any other false publication.”).  In Las Vegas Sun, Inc. v. Franklin, 329 P.2d 867, 869-70 (Nev. 1958), the court rejected the argument that a headline must be qualified by and read in light of the article to which it referred, holding that the “text of a newspaper article is not ordinarily the context of its headline, since the public frequently reads only the headline.”

It seems apparent that a reader is even more likely to read only the headline when a fee is required to access the article. A recent survey by the Reuters Institute for the Study of Journalism at the University of Oxford found that only 22% of Americans had “paid for online news content, or accessed a paid for online news service in the last year.”  Thus, a majority of potential online readers may not read beyond a catchy headline if payment is required to obtain the full story. 

This creates the potential to argue in favor of allowing a defamation claim based on a headline, where the full article is behind a paywall.  It remains to be seen how courts will handle such a situation, but there is precedent to support allowing such a claim to proceed to a jury.  Publishers using paywalls to restrict access to news content should be careful to ensure that the headlines maintain the necessary balance between creating interest to draw readers in and being independently misleading.

Please contact Diane Babb Maughan or any member of Phelps’ Media and First Amendment Law team if you have questions or need advice or guidance.