Sunday, 2 October 2005

Bloggers: liability for hyperlinks?

With very little fanfare (I only just heard about it), a consultation in the UK on extending liability protection to hyperlinkers, location tool providers (i.e. search engines) and content aggregators (subscription services that aggregate content from multiple sources), tongue-twistingly named DTI Consultation Document On The Electronic Commerce Directive:The Liability Of Hyperlinkers, Location Tool Services And Content Aggregators, recently closed. Well, I wrote in to them anyway. I figure the closing date was not too long ago and maybe they'll at least take notice of what I say, even if they can't formally take into account responses received after the official closing date.

Why should we care? Because we bloggers could be considered "providers of hyperlinks" - and it's still not clear in the UK whether, by just linking in our blogs to an unlawful page or site, we could be sued or even fined or jailed. Do you want to run the risk of being done for someone else's content just because in your blog you've innocently hyperlinked to a site or page that contains something illegal? I think not. Fine, we should take down links once we know for sure that the linked material is defamatory or is copyright etc - but if we do that, we should not be held liable, just like (at the moment) "mere conduits", caching and hosting are protected from liability. And of course it's not just bloggers, but anyone whose website links to another website or page, who could get sued. (I know there's a great Legal Guide for Bloggers by the EFF including an FAQ on legal liability issues - trouble is, as with many things internet, it's very US-centric - and, whatever some Americans may think, their laws don't actually extend over here: it's the laws of the UK and European Union which we have to follow, in the UK).

The consultation questions were rather long and legalistic so I just sent in a (relatively, for me!) short reply. Maybe if other UK bloggers do the same very soon (past the closing date or not! Hint hint), the UK government will be more likely to be persuaded to limit our potential liability for hyperlinking to other blogs or sites: I'll certainly be keeping an eye on what the UK government decides to do as a result of this consultation.

Here is what I wrote:

"Dear Sirs

I realise the consultation period has ended, but I only just heard about this. I hope you will, at least informally, take my views into account.

I write as an individual blogger (and therefore occasional provider of hyperlinks in the broad sense) as well as a consumer of Web services.

In brief, I agree that the limitations upon the liability of intermediary service providers contained in Articles 12 to 14 of the Directive should be extended to providers of hyperlinks, location tool services and content aggregators. As a user of search engines and subscription aggregation services, I have an obvious interest in their services continuing freely and not too expensively - and when the search/aggregation is carried out automatically, they should not be liable unless and until they are made aware that specific content is illegal and they've been asked to remove it and don't. Otherwise any monitoring/policing they have to carry out (which I think will be very impracticable for them to do) will raise their costs, which can only lead to increased costs for Internet users and impede the growth of e-commerce.

In relation to "The Commission commented that, whilst it was not necessary for Member States to extend the provisions of Articles 12 to 14 of the Directive to cover hyperlinks and location tool services to correctly implement the Directive, the Commission encouraged Member States to further develop legal security by so doing. " - I agree. If individual member states extend protection to providers of hyperlinks etc, this can only help promote e-commerce as well as freedom of speech.

Particularly in relation to hyperlinks, I feel that hyperlinkers should be protected from liability given the uncertainty about whether they are liable, and in order to promote freedom of speech and e-commerce. A blogger should not be exposed to liability merely by linking to something if they do not know it is defamatory or copyrighted or otherwise illegal, as long as they remove the link if they are told the material linked to is illegal (I'm not sure if a blogger is considered as a "service provider" in this context). The Austrian etc. position should be followed in the UK including in relation to bloggers.

There is still a "blackmail" issue which applies generally, where bloggers as well as ISPs may remove something at the merest hint that it may be illegal (even when it isn't) so as to avoid being exposed to liability, thus leading to the stifling of free speech, but that is a different problem. One, though, which I hope will be tackled by some means or other.


So, I hope other UK bloggers will write in too, to urge them to extend protection to hyperlinkers: I've even tried to make it easy for you by filling in the subject and suggesting a quick sentence in the body, but feel free to add, edit etc. as you see fit...

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Kirk said...

whatever some Americans may think, their laws don't actually extend over here:

And for that you should be very thankful. ;-)

Improbulus said...

Indeed. Especially the laws from O, I imagine, LT! :D