The internet poses a wide range of challenges for media law. Content is copied, shared or published in ways that the legislators did not anticipate, and moves seamlessly across borders without thought for jurisdictional complexities.
A particularly difficult issue arises for journalists active in the ‘blogosphere”. Blogs (particularly ‘filter’blogs rather than ‘diary’style blogs) include numerous links to other blogs or websites.
One of their primary attractions is their ability to direct readers to other relevant online content, helping them to sift through the enormous amount of content available.
But what is the liability of the linker? By directing readers to a defamatory story, or to content which breaches copyright, does the blogger run the risk of liability for the offending content?
As with many questions which arise where old laws meet new media, the answer is unclear. Liability for defamation attaches to anyone who participates in the publication of the defamatory statement.
The original source of a damaging story may be hard to identify, hence attention can often switch to the secondary publisher, for example an ISP.
In the blogosphere, an obscure website may only gain critical mass once it is linked to by a popular blog, so someone aggrieved by comments on the previously obscure site may well have good reason to look to the blogger rather than the original source.
The blogger’s liability in this situation has not been tested in the UK to date. The closest precedent is the 1894 case of Hird v Wood, which decided that a man who pointed out a defamatory sign (which was not his) to passers-by was liable as a publisher of the statement on the sign, since he had participated in its communication to the public.
The analogy with a blogger who explicitly encourages people to visit another website is clear. However, what if the reference is merely passive; for example, one link in a long list of other favoured sites?
There may be no legal distinction in practice, but a court which placed this high-a-level of responsibility on linking would be undermining a practice which underpins the utility of the internet.
The absence of cases on this issue to date may suggest that while liability is a hypothetical risk for linkers, in practice the chances of a complaint are so low that particular caution need only be exercised with the most obviously inflammatory material.
The position on copyright is similarly unclear. The only UK case on the issue, involving the Shetland Times, found that deep-linking to a site may constitute copyright infringement, and issued a temporary injunction banning the Shetland Times from doing so. However, the case settled before the point could be fully tested.
In Europe, German courts have approved deep-linking but Danish courts have held that the practise breaches database rights, despite the two countries’ legislation being based on the same underlying EU principles.
This level of uncertainty is unacceptable for journalists seeking to thrive in the online environment. Unfortunately, although the DTI consulted on these issues last year, there is no prospect of imminent legislative change.
Phil Sherrell, is a media lawyer at international law firm Eversheds