Saturday, October 25, 2003

Could your hyperlinks land you in hot water?: "France's Internet Rights Forum (FDI) has published recommendations on the responsibilities of sites that create hyperlinks to 'illicit content'. One working group has been grappling with the thorny subject of for seven months—neither the European directive on ecommerce or a bill under discussion in France designed to boost confidence in the digital economy have been able to deal with the issue.

"The FDI experts highlight that creating hyperlinks can become problematic when they direct users to illicit paedophilic, pornographic, Nazi or racist content or sites that are connected to pirated material that could be deemed detrimental to a third party (defamation or harmful to a brand)."

Forgetting for a moment that this is France we're talking about, let's consider some of the implications herein.

First, a link is strictly part of a site that's independent of any link's destination. FDI begins with a faulty premise in stating, "A principle must be stated: the establishment of a link is free. This principle is justified by the nature and the very functioning of the Internet." Links are not in essence a matter of cost or function; links are information, and only that. Such source information establishes the publisher's credibility and confidence in its sources to its readers.

Browsers make linked sources accessible. A hyperlink in no way implies ownership of a site; further, were any such illusions valid, links would then do nothing to add credibility to the linking site. Restricting linking would restrict accessibility to source information and thus restrict credibility. Therefore, to consider a link anything more than a source citation is tyranny.

Second, the content of a link's destination is not fixed. Web site's are fluid—they change. How can one be held permanently accountable (as content is not always, though ideally, permanently archived) for the content of a site at a time later than a link was published?

Even Congress agrees that such is an unreasonable. That's why as part of The PROTECT Act it enacted the Truth in Domain Names Act to "prohibit knowingly using a misleading domain name with the intent to attract a minor into viewing a visual depiction of sexually explicit conduct on the Internet." Read: it's a link destination's owner who is responsible for a URL's content and whether it's legal, pirated, or whatever.

Finally, there's the free speech issue. (Back to the French.) Americans, in dwindling numbers, immediately recognize the free speech implications of such restrictions on speech. Forgetting for a minute the misattribution of linking properties (the first two items discussed here), one should ask the question, "So what if the content of a site is hateful?" Yes, obscenity is illegal, and piracy is illegal in general. But of all possibly pirated material, why single out hate?

Hate is not illegal. Of course it's undesireable, but not everything that is undesireable, or even harmful to some should immediately be limited. When it is, tyranny has won, we are no longer free, and we cannot grow.

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