The Case In Favor of a Federal Statutory Immunity For Linkers

Tuesday, Dec. 10, 2002

Website operators often treat linking lightly. Few scrutinize the information to which they link as carefully as the information they post directly. After all, most people believe, "It's just a link."

At least in theory, however, linking can be dangerous from a legal standpoint - especially when the link does not simply lead to a website, but leads, more specifically, to a particular article or piece of information that the website contains.

In this column, I'll discuss the current legal risks of linking. I'll also argue in favor of Congress's granting a broad statutory immunity for linking, as it has done for web hosting.

The Current Legal Risks of Linking: Why It's Dangerous

And if such claims are proven, linkers - especially if they have deep pockets - may end up being the ones who end up paying all or part of the damages. That means paying, for example, for libel's harm to the target's reputation; the emotional harm from invasion of privacy; or the lost royalties from copyright or trademark infringement.

What are the theories under which linkers can be liable? Linkers should be wary when it comes to any area of law that allows for contributory, vicarious, or "aiding and abetting" liability; imposes liability on republishers or disseminators of information, as well as original publishers; or simply is vague about who the "publisher" is in the first place. And unfortunately, that describes many areas of law.

For instance, in the libel context, the general rule is that "Republication of a libel does not diminish liability." That means that, for libel purposes, linking and posting are effectively very similar. The rule is counterintuitive - by comparison, most people feel that repeating gossip is less blameworthy than initiating it - but it is the law.

To take another example, copyright law forbids vicarious or contributory infringement. That is the reason that the music industry was able to go after Napster for infringement that was actually done by its users.

In the Napster lawsuit, Napster was held to have contributed to users' infringement by creating an environment in which it could easily occur. It was also held to be vicariously responsible for that infringement, apparently on the theory that by hosting the infringement, it was an infringer too.

Similar arguments could be made to the effect that a linker contributes to infringement, or is responsible to it, when it links to infringing material.

The risk that arguments like these might successfully be made is real: Indeed, some companies with Internet presences are quite worried about the legal risk of linking.

As a result, they have wisely chosen to include a section in their corporate disclosure statements that warns investors that the company's practice of including links on its website might lead to lawsuits, and potentially damage awards, against the company. (Companies make such disclosures, pursuant to the federal securities laws, to avoid shareholder suits for fraudulent omissions.)

What A Statutory Immunity For Linkers Should Do

To be effective, the immunity should defeat any state law claim, whether or not it is based on a statute. Invasion of privacy claims, for example often are not based on state statutes, but on state common law - that is, prior judicial decisions, and longstanding legal doctrines, that have never been codified. However, claims for invasion of the "right of publicity" - the right to control commercial exploitation of one's name or image - are often creatures of statute. (California, for instance, has both a statutory and common law right of publicity.) To truly make linkers safe, the immunity should cover all state law claims, of any variety.

The immunity should also defeat any federal law claim, as well. Copyright law, for instance, is federal, and conceivably other federal statutes, besides the federal Copyright Act, might someday be construed to reach linking.

So far, however, Congress has only acted to expand liability for linking. Through the Digital Millenium Copyright Act (as I discussed in a previous column), links can potentially trigger liability if they lead the user to computer code that allows copyright infringement. Meanwhile, all the other potential state-law and federal-law sources of liability for linking remain.

Why Immunity Is Necessary

Granted, there are limited exceptions and privileges that might apply to protect linking already - even without a new immunity. Some are grounded in the First Amendment; some are doctrines special to the particular area of law. A twist in trade secret law, for instance, may provide special protection for those who link, or even simply republish already-public material on their own sites, as I detailed in an earlier column.

But these exceptions and privileges are limited: One cannot always count on them. Moreover, they must be raised as a defense, after a complaint has already been filed, and costly litigation has begun.

And granted, anonymity can effectively defeat liability, by making it impossible to locate and serve the defendant. But anonymity is not always feasible or desirable for a given linker, and since September 11, anonymity is becoming an increasingly limited commodity. For instance, recent reports that al Qaeda is using anonymous web postings for its public statements may spell anonymity's ultimate doom.

Finally, a surviving section of the Communications Decency Act (CDA) arguably protects linking. (The Supreme Court struck down much of the rest of the CDA in Reno v. ACLU). But the argument could just as easily be made the other way.

The relevant CDA section holds that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." That immunity clearly covers those who acts as hosts for others' speech or transactions; thus, eBay, AOL, and dating websites such as have successfully invoked the immunity the CDA provides.

Due to ambiguities like these, if linkers are to feel safe, they need a clearer immunity than the CDA currently provides.

The Case For Statutory Immunity For Linking

Why should linking be immune from liability? Partly, I believe, because such liability will always be a trap for the unwary: Even if there are a few high-profile cases of linker liability, people are highly unlikely ever to scrutinize the material or websites they may link to, as carefully as they do when deciding what original material they may want to publish themselves.

And part of the reason for an immunity is that linking is, I believe, highly socially useful - probably one of the Internet's most useful features.

It allows websites to collect information from everywhere on the Internet. As a result, a few persons' labor can save labor for thousands or millions of users.

Moreover, laypeople can benefit from experts' collections of links: If I have a medical condition, for instance, a public-minded doctor or organization can help me and others with the condition by collecting together the most relevant links. Not only will that site save me the labor of searching, it will also provide me with better results than I could ever have gotten on my own.

Meanwhile, linking also allows information from competing sites to be brought together in a single place: Consider, for instance, The Drudge Report's links to numerous news sources that would never link to each other. Again, efficiency is added, labor is saved, and breaking news can be highlighted, no matter what its source.

Interestingly, immunity for linkers might have the side effect, ironically, of creating more - and larger, and better-funded - competitors for the Drudge Report. Right now, potential liability is a serious drawback to creating a site that is essentially or largely a collection of links.

Immunity, by removing that drawback, would also remove a serious barrier to entry, and provide an answer to the question of why there aren't more (or at least, more high-quality) Drudge Report-like sites out there. For now, all we can do is honor Drudge for bravely proceeding despite the risk.

Allowing broad immunity for linking, however, may well create a situation where there are legal rights, but no corresponding remedies. As a result, the decision whether to create immunity for linkers inherently presents a brutal tradeoff.

Suppose, for instance, that a well-trafficked site links to an item on a little-trafficked site that represents a serious invasion of privacy - say, an unauthorized nude photo of a celebrity. The immunity would mean the linker can't be sued for the privacy invasion. But the little-trafficked site may be too poor to pay a judgment, and thus not worth suing. In the end, the celebrity may have no remedy.

As this example shows, there are serious drawbacks to a broad immunity for linkers. But the advantages of immunity, as noted above, are very attractive too. Moreover, the advantages of immunity create a broad social good: the ability to convey information far more efficiently than would otherwise be possible.

On the whole, I believe the advantages of immunity outweigh its drawbacks. Accordingly, Congress should grant broad, clear statutory immunity for linking. And it should do so before more unwary linkers learn, to their great dismay, that linking is far from as safe as it may appear.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, Hilden published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published by Plume Books in August 2003, and in French translation by Actes Sud.

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