Tuesday, September 09, 2008

What's the legal liability in (hyper) linking?

The Securities Exchange Commission (SEC) in the US is investigating the legalities of website linking, putting forward a policy proposal stating that companies should be held liable for linking to other sites containing information related to their share value.

Basically, if a link from a company's website pointed to false or misleading information about the company's prospects, it could be held responsible (under the proposed policy), leading to a fine or more severe action.

Why is this important in Australia?

Because it could be the thin edge of the wedge for linking. If a company cannot link to certain sites for fear of share information related liability (such as a public forum where opinions are aired, or a media publication which accidentally gets a story about the company wrong), it's not too many more steps to a situation where any hyperlinking may contain a legal risk.

If there was a risk for companies, there would also be a risk for government. What if that family-friendly site your agency linked to (even with a warning interstitial) was bought out by an adult products company, who promptly repointed it to one of their adult shops?

Would the agency linking to it become liable for the link? Or would extra legalese be required to discourage anyone going from one site to another, just in case.

This would make one of the fundamental foundations of the internet - linking - a very risky business.

Reported in WebProNews in the article, SEC Looks Into Hyperlink Liability, the SEC's approach does take into account the situation described above - where a clear warning exists, or the intention was not to cause offense or harm, so it's not really the thin edge of that wedge after all.

However I can see greater probity on linking leading to the kind of situation I described above - on the basis that by walling in the garden the customer is protected from 'bad' influences. It was the business model used with considerable success for a number of years by AOL.

Can you see a time coming where linking to other websites (other than trusted .gov.au sites) becomes too risky for your organisation to chance legally?

Is this a real option or should it be considered alongside foil hats?


  1. It kind of fit's in with some of Jonathan Zittrain's comments over on the next page.

    However, I am leaning towards foil hats.

    If not already I'm sure that there will be tools to notify you when a website you are linking to has had a change in "audience".

  2. I wouldn't neccessarily trust .gov.au sites!

  3. Nor do citizens it appears Nathanael!