Links Liability
An emerging question in the law of the Internet is whether a web page can provide links to other web pages (as many do) without the permission of the owners of the other web pages. Alternatively, if a link is provided to another person's page, does the existence of that link subject the operator of the page providing the link to liability for the contents of the second page? In other words, can a person sue one page for, say, the defamatory content on another page, simply because the first page provided a link to the second page?
The law on the subject is just beginning to emerge, so providing answers to these questions is, at this point, somewhat of an exercise in speculation. It appears likely, though, that a link to another site will not provide a basis for liability unless the link falsely implies that the proprietor of one site sponsors or endorses the linked site. Likewise, it is unlikely that merely providing a link to another page could be considered a violation of the rights of the person operating the other page. So long as the link does not copy any of the material at the other page, the link will probably be considered to be analogous to a citation or reference to another source.
There are a few notable situations in which the law has confronted "links liability."
In December of 1995, a situation arose in California which provides an interesting example of the types of problems that links can cause. A member of the White Aryan Resistance ("WAR") operated a white supremacist web page, which attacked Jews and African Americans. The page included links to pages operated by the Yuba City Police Department and a Sacramento television channel. The operator of the page agreed to the police department's request to remove the link, but refused to remove the link to the television station. Meanwhile, the Internet Service Provider for the WAR page operator installed a disclaimer that appears before anyone accesses the WAR page, stating that "You are warned that you are probably going to be offended by the following page, and we encourage you to stop now." Apparently, none of the parties felt that they had any legal recourse for their problems, and no court action ensued. See, Frank Hartzell, Supremacist Yanks Web Link to Cops, Sacramento Bee, December 21, 1995, at B1.
A second and more important development involved a new law that was passed in Georgia. On July 1, 1996, Georgia amended its criminal code to add new section 16-9-93.1, titled "Misleading transmittal and use of individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol over computer or telephone network; criminal penalty; civil remedies." Because of the "lack of borders" on the Internet, providers of Internet content and services everywhere needed to be aware of potential liability they could face under the new Georgia statute. (See our page: What Jurisdiction Controls?)
The new law provided that:
It shall be unlawful for any person, any organization, or any representative of any organization knowingly to transmit any data through a computer network or over the transmission facilities or through the network facilities of a local telephone network for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol to falsely identify the person, organization, or representative transmitting such data or which would falsely state or imply that such person, organization, or representative has permission or is legally authorized to use such trade name, registered trademark, logo, legal or official seal, or copyrighted symbol for such purpose when such permission or authorization has not been obtained; provided, however, that no telecommunications company or Internet access provider shall violate this Code section solely as a result of carrying or transmitting such data for its customers.
The law provided that violation of the statute is a misdemeanor (punishable by up to one year imprisonment), and that civil remedies for violations are available in the form of monetary damages or equitable relief.
The law raised at least two areas of initial concern. First, the law would have made it illegal to use a "false" name as an e-mail address. In other words, if John J. Jones, a physicist doing research on lasers, has an account on America Online, and wishes to send e-mail to someone in Georgia (or, arguably, if he wishes to send e-mail that routes through a computer in Georgia at any point along the way to its final destination), he might not have been able, under the law, to use, for example, an e-mail address like " LaserJohn@aol.com," because it may "falsely identify" him. Thus, e-mail addresses could not be used in the way "handles" are used on CB radio. It was even possible that "JJJ@aol.com" could be construed as falsely identifying, particularly if Jerry J. Johnson brought suit. The law also threatened to prohibit anonymous postings, in spite of the fact that the right to publish anonymously and under pseudonyms has long been recognized as a protected First Amendment right. See, e.g., McIntyre v. Ohio Elections Commission, 115 S. Ct. 1511 (1995).
Second, the prohibition on the unauthorized use of trademarks and the like in a way that "implies" permission or authorization threw into question the legality of the "hyperlinks" found throughout the World Wide Web. For example, suppose a law firm posts on its home page an article discussing a legal case involving XYZ Company. Suppose further that the law firm provides a link to the XYZ Company home page. Although the law firm has not obtained the permission of the company, the presence of the link could have implied that it has, resulting in a violation of the statute.
On September 24, 1996, the ACLU, joined by thirteen other plaintiffs, including a variety of public interest groups, sued to challenge the new law, alleging that it was unconstitutionally vague, and impermissibly chilled forms of expression protected by the First Amendment. The final status and impact of the law remains to be seen, and other states are in the process of passing their own Internet laws. (At last count, eleven state legislatures had passed Internet statutes, and nine other had considered taking some form of action.) For now, the prudent course for operators and owners of web sites providing links to other sites may be to include a disclaimer.
On June 23, 1997, Judge Marvin H. Shoob issued an order preliminarily enjoining the enforcement of the Georgia Act. First, Judge Shoob ruled that although the statute's proponents argued that the law would serve the state's compelling interest in preventing fraud, "the statute is not narrowly tailored to achieve that end and instead sweeps innocent, protected speech within its scope." Furthermore, the court found that "the statute was not drafted with the precision necessary for laws regulating speech. On its face, the act prohibits such protected speech as the use of false identification to avoid avoid social ostracism, to prevent discrimination and harassment, and to protect privacy, as well as the use of trade names or logos in non-commercial educational speech, news, and commentary." Finally, the court held that the law was unconstitutionally vague because it did not adequately define terms such as "falsely identify," "use," "falsely imply," and "point of access to electronic information." In light of this ruling, it does not appear likely that the Georgia statute or other similar statutes will survive First Amendment scrutiny.
Frames & Pinpoint Links
Of course, sometimes links are more than just links. Developers are beginning to provide links which, instead of simply sending the user to another site, instruct the user's browser software to obtain a file from another site, and then bring that file to the first site. This technology is called "framed" links, because the link draws information from another site and places it seamlessly in a "frame" at the original site. Frames recently became the subject of a lawsuit in a case filed by several major news organizations, including the Washington Post, Time Magazine, and Cable News Network, against a five-person web-based "news directory" operating out of Phoenix called TotalNews. TotalNews provided framed links to the sites of approximately 1,200 news organizations. TotalNews then presented the content from other sites in a frame at its own site, surrounded by its own logo and advertising. The news organizations alleged that TotalNews was free-riding on their efforts by misappropriating their news stories for TotalNews's own commercial profit. TotalNews countered by arguing that it had not infringed any copyright of any of the plaintiffs, because it did not make any copies of the plaintiff's information, but merely provided linked access. (TotalNews did not cache the sites to which it linked.) The case settled quickly, with TotalNews agreeing not to frame links to any of the plaintiffs' sites, nor to use any of the plaintiffs' logos or distinctive images for hyperlinks -- essentially, agreeing to provide text-only, non-framed hyperlinks.
Another case involving framed links is Futuredontics, Inc. v. Applied Anagramics, Inc., 45 U.S.P.Q.2d 2005 (C.D. Cal. 1998). Like the TotalNews case, this case involved a defendant who created a web site with a framed link to the plaintiff's entire web site. The Court denied the defendant's motion to dismiss, finding that the plaintiff had made stated the basic elements of a copyright claim. Specifically, the Court found that a framed link might constitute a derivative work under the Copyright Act, but characterized this as a question of fact to be resolved at trial.
Another recent case involves a dispute between Microsoft and Ticketmaster. Microsoft operates a series of "city guide" web sites, which provide various types of information about a given city. The sites all incorporate the name "sidewalk.com," such that, for example, the city guide for Seattle is called "seattle.sidewalk.com." One of the features Microsoft offered was the ability to buy tickets to entertainment events on-line. Microsoft did this by providing information about the event at the sidewalk site, and providing a "pinpoint hyperlink" which linked the user directly to the point on the web site of Ticketmaster from which tickets could be ordered. Ticketmaster has objected to this practice, because, although Microsoft does not "frame" the Ticketmaster site, it allows users to bypass the Ticketmaster home page (and any advertising contained on the home page) and go directly to the ticket ordering page. In its complaint, Ticketmaster claims that: "by accessing Ticketmaster's live event information and services without Ticketmaster's approval, and by prominently offering it as a service to their users, Microsoft is feathering its own nest at Ticketmaster's expense. It is, in effect, committing electronic piracy. In this narrow corridor of cyberspace, Ticketmaster must maintain control of the manner in which others utilize and profit from its proprietary services, or face the prospect of a feeding frenzy diluting its content." While the case is pending, Microsoft has modified its links so that users can only link directly to Ticketmaster's home page, rather than allowing "pinpoint" links to locations within the Ticketmaster site.
Legislative Action
At least one aspect of links liability has now been resolved by Congress. Under the Digital Millennium Copyright Act (for more on this new law, see our page on Copyright Liability of On-line Publishers), under ordinary circumstances, a service provider cannot be held liable for copyright infringement for providing a link to a site which contains material that infringes on a copyright. The statute provides that there shall be no liability for a service provider who provides "information location tools" which "refer" or "link" users to other online locations containing infringing material or infringing activity. However, this exemption is subject to conditions: the provider must not have actual knowledge of the infringement, must not be aware of facts or circumstances from which infringing activity is apparent, and must act "expeditiously" to remove the link if it obtains such knowledge or awareness. Finally, the service provider may not derive a financial benefit from the infringing activity. For these purposes, a "service provider" is defined as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, or material of the user's choosing, without modification to the content of the material as sent or received," and expressly includes "a provider of online services or network access, or the operator of facilities therefor." There is also an express exemption of liability for a provider who removes a link based upon a good faith belief that the link provides access to infringing material. Of course, the new law has no effect on "links liability" based upon other theories, like false attribution, implied endorsement, defamation, etc. It is also not entirely clear to what extent, if any, ordinary web sites will be excluded from these protections, since they may not fall under the definition of "service provider." The legislative history which accompanied the new law suggests that a web site operator is not intended to fall under the definition, but the "mere" provision of connectivity to a web site does fall under the definition. No doubt, this issue will have to await clarification from the courts.
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