As companies continue to operate and interact with consumers largely online, the law must to evolve to account for complex questions concerning how technology impacts traditional legal notions. Recently, the Florida State District Court of Appeals answered one such question: Are hyperlinked sources on websites adoptive admissions by the entity operating the website?
The answer: probably not. The Florida State District Court of Appeals addressed this question in a tobacco litigation case in which the plaintiff argued that surgeon generals’ reports pertaining to smoking fell under the adoptive admissions exception to hearsay because the defendants’ website contained hyperlinks to these sources. Philip Morris USA, Inc. v. Pollari, 228 So. 3d 115, 125 (Fla. Dist. Ct. App. 2017), review dismissed, No. SC17-2164, 2019 Fla. LEXIS 461 (Fla. Mar. 27, 2019).
The court ruled that in light of the broad disclaimers on the websites that the companies were not endorsing the information contained in hyperlinked pages, language on the websites that indicated that consumers should rely on the surgeon generals’ reports was not strong enough to allow for an adoptive admission. While no other jurisdiction has answered this question yet, Florida has twice reinforced its stance, in two other tobacco litigation cases. R.J. Reynolds Tobacco Co. v. Ryan, 231 So. 3d 48 (Fla. Dist. Ct. App. 2017), review denied, No. SC18-37, 2019 Fla. LEXIS 1271 (Fla. July 18, 2019) (noting that the court had held that the same contested reports were inadmissible in Philip Morris USA, Inc., 228 So. 3d 115); R.J. Reynolds Tobacco Co. v. McCoy, 229 So. 3d 847 (Fla. Dist. Ct. App. 2017) (noting that the court had held that the same contested reports were inadmissible in Philip Morris USA, Inc., 228 So. 3d 115).
This is great news for companies with a large web presence, but poses a difficult obstacle for plaintiffs hoping to challenge these companies, as Florida is currently the only state court jurisdiction to have even raised this question. The opinion, however does leave some avenues open for attorneys hoping to argue that hyperlinks are adoptive admissions. The court indicated that in the face of clear disclaimers, use of quotes from the hyperlinked sources would influence the decision as to whether the hyperlinked sources are adoptive admissions. Additionally, “statements of express agreements” with the information contained in hyperlinked sources might also influence the determination as to admissibility. However, the opinion does not clearly take a stance one way or another that either quotes or statements of express agreement would necessarily overcome a clear disclaimer.
In the face of this decision, attorneys seeking to introduce evidence contained in a hyperlink on a defendant’s website should emphasize any endorsements of, or direct quotes from, the information in the hyperlinked source. If possible, it is also advisable to elect to bring the claim in federal court to take advantage of the precedent that information from a party’s website is generally admissible as an adoptive admission. See Freedom from Religion Found., Inc. v. Montana Office of Rural Health, No. CV 03-30-BU-RWA, 2004 U.S. Dist. LEXIS 29139, at *3 (D. Mont. Oct. 26, 2004).
Allison Caramico is a law student at the New York University School of Law.