Judicial Conference Establishes Guidelines On How And When Courts Can Cite Internet Sources In Opinions

Judges, like everyone else, have been affected by the treasure trove of information available on the internet, and have slowly begun basing judicial decisions on internet sources. However, until recently citing internet sources in judicial opinions has been a haphazard affair, with little guidance provided anywhere on how to identify reliable sources, how to present an internet citation or how to cite to the many sources on the web which are subject to being repositioned without the knowledge or consent of the author of the opinion. Given the ever increasing use of the internet by lawyers and judges alike, establishing rules to guide the legal profession in citing internet sources only makes sense.

In March 2009, the Judicial Conference of the United States sent the chief judge in every federal district a set of guidelines, called “suggested practices”, to help them decide when and how to use internet sources.

The guidelines say judges should apply the same criteria to internet sources as for traditional media — accuracy, scope of coverage, objectivity, timeliness, authority and verifiability.

Among the guidelines on the use of internet sources, the judicial conference recommended the following:

  • Judges should take into account whether the information is “stable and likely to remain accessible” via the citation used.
  • Judges should follow the standard Bluebook citation format and use the cut-and-paste method to ensure the correct web address, known as a Uniform Resource Locator (URL).
  • The federal guidelines recommend capturing a web page and attaching it to the opinion if the internet source is “fundamental to the reasoning of the opinion and refers to a legal authority or precedent that cannot be obtained in any other format.” A captured web page should be converted to PDF format with some notation of the date, such as a watermark.
  • If copyrighted materials are involved, permission might have to be obtained and the capture should include the copyright notice.
  • Because lawyers also cite to online resources, courts “might want to require counsel to capture and attach internet resources cited in motions or briefs filed with the court, to ensure that the information relied upon by counsel is readily available to the judge.”
  • Hyperlinks — which can take a reader directly to a cited web source — should generally not be used where they lead to a commercial vendor’s fee-based site. A judge who opts to do so must include a disclaimer, stating that the court does not accept responsibility for or endorse the product, organization or content of the site or any other site to which it might be linked and that if the link stops working, it does not affect the court’s opinion in the case.

A recent New Jersey appeals court decision highlighted the risk of relying on an internet source. In Palisades Collection vs. Graubard , A-1338-07, decided on April 17, the Appellate Division reversed a trial court’s judgment in a credit-card collection case in favor of the creditor. The trial judge took judicial notice of information from Wikipedia that helped trace ownership of the debt. Noting that anyone can edit Wikipedia, including a litigant, the appeals court termed it “inherently unreliable.”