EU rulings could eventually chill bloggers’ hyperlinks

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There are ill winds, particularly on copyright, from the European Union (not sure if Brexit would exempt the UK), which could affect the legal safety of bloggers with hyperlinks, something we take for granted now. Much of what follows is motivated by the increasing difficulty of legacy news and media, especially with print, to make original content profitable when competing with “barely legal” user-generated content (where “it’s free”, or nearly so).

One problem is a ruling in a case of Sanoma Media in the Netherlands v. Playboy, where a court ruled that a publisher can be liable for hyperlinking to content it reasonably suspects is infringing when it also has commercial purposes.  Probably hosting ads would qualify as commercial.  Electronic Frontier Foundation has a story Sept. 6 by Jeremy Malcolm where he predicts a “new dark era for hyperlinks”. The ruling contradicts an earlier ruling in Spain in 2011 (story).

Sporadically, in the past few years, I’ve reported on the possibility that people could be held liable for hyperlinking to defamatory content in the US, although the possibility is remote.  There were some flurries around 2000 when a few companies in the US did not want to allow “deep hyperlinks” to their sites, until a court ruled against these companies, saying that hyperlinks are like footnotes in a term paper.  I am not aware right now of a case in the US about linking to infringing material.  There have been a few claims concerning deliberate embeds of infringing material, but usually the embeds just disappear.

Very occasionally, I get emails about broken links on my own legacy sites, and it is possible that these links could have gone dark because of infringement.

I don’t think there is a practical risk yet that US sites (or bloggers) would be sued over EU complaints, even though treaties would theoretically allow these suits.  (Ask Hillary Clinton.  If she doesn’t know her email server, she probably doesn’t know this.)  I would wonder about Australia, because of the world’s most outgoing blogging consultants (Blogtyrant or Ramsay Tamplin) operates there.

EFF has also warned about a proposal in the EU to impose a “link tax” (story, and protest link for “save the link”), at the will of original news publishers, and I find it hard to see how this could work.  Maybe it could be connected to Google’s content-id, but it could also cause a lot of news results to disappear from search engines, at least in the EU.

On another matter Ted Cruz has an article in the Daily Signal warning about the possibility of giving ICANN much more power (taking it from the US Commerce Department) at a time when authoritarian countries have a lot more sway than they used to.   This may be related to TPP and will need to be delved into further.  I’m not sure Cruz has explained exactly how what he fears would come about.

(Published Thursday, Sept. 8, 2016 at 11:45 PM EDT)