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freedom of expression

The right to link and your freedom of expression

Posted Wed, 17/02/2010 - 17:09 by Paul

A number of companies have a curious clause in their website terms of use that prohibits anyone from linking to their websites. I wrote about one example of this a while ago when I mentioned provisions in Standard Bank's conditions of access (I'm afraid you are going to have to find the terms yourself, I am not permitted to link to them although I have quoted them in my post). Standard Bank is by no means the only company that does this and this tendency continues to both puzzle and frustrate me both as a blogger and a social media lawyer. It just doesn't make much sense to me.

I recently came across a post by Jeff Jarvis titled "The right to link" which got me thinking about this issue again, this time in the context of the freedom of expression enshrined in our Bill of Rights which states the following:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The section of the right that interests me for the purposes of this post is article 16(1)(b) which protects the freedom to "receive or impart information or ideas". A hyperlink (that typically blue link you click on in your browser which takes you to a web page or location on a web page) is a reference of sorts. Wikipedia defines a "hyperlink" as follows:

In computing, a hyperlink (or link) is a reference to a document that the reader can directly follow, or that is followed automatically. The reference points to a whole document or to a specific element within a document.

One of the definitions of a "reference" which I found on Google is the following:

A reference is something such as a number or a name that tells you where you can obtain the information you want.

So one way of thinking about a hyperlink is as a reference to information. Surely part of receiving or imparting information or ideas is making reference to them, as article 16(1)(b) seems to contemplate? Hyperlinking has become a contentious issue in the context of online news sites, particularly Rupert Murdoch's online News Corp properties. Murdoch has linked (excuse the pun) the issue to a copyright issue because the contention that Google is stealing already pressured newspaper publishers' content is a particularly emotional one. In his op-ed piece in the Wall Street Journal last year, Google's CEO, Eric Schmidt, presented a very different perspective. The whole article is worth reading but this extract stood out for me:

Google is a great source of promotion. We send online news publishers a billion clicks a month from Google News and more than three billion extra visits from our other services, such as Web Search and iGoogle. That is 100,000 opportunities a minute to win loyal readers and generate revenue—for free. In terms of copyright, another bone of contention, we only show a headline and a couple of lines from each story. If readers want to read on they have to click through to the newspaper's Web site. (The exception are stories we host through a licensing agreement with news services.) And if they wish, publishers can remove their content from our search index, or from Google News.

WorldWideWebAroundWikipedia.png

This brings me to a myth one of the fathers of the Internet, Tim Berners-Lee, dispelled in April 1997 on a webpage titled "Links and Law: Myths":

Myth: "A normal link is an incitement to copy the linked document in a way which infringes copyright".

This is a serious misunderstanding. The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.

When the "speech" itself is illegal, whether or not it contains hypertext links, then its illegality should not be affected by the fact that it is in electronic form.

Users and information providers and lawyers have to share this convention. If they do not, people will be frightened to make links for fear of legal implications. I received a mail message asking for "permission" to link to our site. I refused as I insisted that permission was not needed.

I added the emphasis to the first paragraph of the response to the myth because I believe that encapsulates what it means to link to something on the Internet - it is an exercise of a right to free speech. In the context of the South African Bill of Rights, this equates to the broader freedom of expression.

Jarvis expressed the point in privacy terms and this makes a lot of sense too:

Right. Linking is not a privilege that the recipient of the link should control – any more than politicians should decide who may or may not quote them. The test is not whether the creator of the link charges (Murdoch’s newspapers will charge and they link). The test is whether the thing we are linking to is public. If it is public for one it should be public for all.

...

In the end, this fight is over control. News Corp is desperately trying to maintain its control over access to and packaging and pricing of information that now flows freely from many sources. Thanks to the internet, it is losing it – in more than one sense.

Clauses in terms of use that prohibit links to otherwise publicly accessible web pages is an affront to the freedom of expression and makes about as much sense as newspaper publishers turning away "100,000 opportunities a minute to win loyal readers and generate revenue—for free", even if it is on a smaller scale. Reading the response Standard Bank sent to me and which I published in my post, it seems that News Corp isn't the only organisation obsessed with controlling the hyperlink. Any organisation which attempts to control who may or may not link to publicly accessible web pages is in the same boat.

What does this mean in real terms? Well, a clause prohibiting hyperlinking, perhaps even deep-linking, may be unconstitutional if it does, as I suggest, unjustifiably infringe the freedom of expression. That being said, I don't see a case reaching the Constitutional Court any time soon, if at all. Another question which you may ask is whether the terms of use have any significance where crawlers and other electronic agents traverse the Web automatically linking to these websites? The short answer is that in terms of the Electronic Communications and Transactions Act, an electronic agent can bring its principal into a contractual relationship with a site owner. The underlying contract would be the terms of use.

In real terms it may just mean that organisations which incorporate these linking prohibitions into their terms are starving themselves of oxygen online when they deny visitors the opportunity to link to their sites and develop a connection to the organisation or brand behind the site. As Jeff Jarvis put it in his post titled "The link economy v. the content economy":

... Let’s say that the real value in this equation is not content and information — both of which are now quickly commodified — but links, which are the new currency of media. Links can be exploited and monetized; get links and you can grab audience and show ads and make money. Content is becoming a cost burden, what you have to have to get the links, but in and of itself, content can’t draw value without an audience, without links.

Postscript: I would like to just point out that the purpose of this post was not to single Standard Bank out as a fundamental rights violator. I have previously written about its terms of use so it was a convenient example to use in this story.

Changing perceptions of the social Web from a legal perspective

Posted Fri, 27/11/2009 - 08:29 by Paul

I was invited to speak at the IT Governance Forum/Conference yesterday in Rosebank. I spoke about social media and some of the legal challenges social media use introduces. I have this nagging feeling that many people don't take social media seriously enough to recognise that there are real legal challenges.

I made the point that social media is perhaps seen as a little warm and fuzzy and without all that much substance. There is a lot of emphasis on sharing and not all that much on the very real impact social media can have on a business' bottom line.

Many of the attendees at the event weren't familiar with Twitter, for example, and while Twitter might be seen as somewhat superficial, it can have a profound impact on a business if the right people spread bad reviews (or good, for that matter) to the right connections.

My slides are below if you are interested in the topics I talked about:

Social media: Legal and business challenges

Manifesto: BigLaw is broken

Posted Mon, 16/02/2009 - 10:40 by Paul

Share this, share your thoughts and your ideas. Help us change how law is practised.

A presentation on new media and the law

Posted Mon, 22/12/2008 - 20:21 by Paul

I just published a video version of a presentation I prepared for the Social Media Management Conference in October 2008 at the Indaba Hotel. This is the first part of a series which I will publish over the next week or two.

This is probably the last time I will give this particular presentation. I have given this presentation or minor variations of it for the last year or so and something a little more specific will be more useful as more companies adopt social media elements into their marketing campaigns and general web presences.

Update: A PDF version of the slides is available for download from Slideshare. You can also view the slides themselves in a slideshow here too.

Update 2: I just noticed that my voice over doesn't extend throughout the slideshow. I apologise for this. There seems to have been a bug in the recording in Keynote. I'll try resolve that and repost the video.

Press subjected to a different test in defamation cases

Posted Thu, 11/12/2008 - 12:33 by Paul

Defamation is a hot topic these days with Donn Edwards' battle with Quality Vacation Club being the most talked about stories in the South African social Web. Defamation cases are strange beasts. They don't involve large monetary awards and they can be particularly complex cases to prosecute (whether you are in the firing line or the one pulling the trigger). In order to succeed in a defamation action, a plaintiff must establish that the defendant has published defamatory material that a “reasonable person of ordinary intelligence might reasonably understand the words of the article to convey a meaning defamatory of the plaintiff”. If the plaintiff is successful in proving this, the defendant must then establish the existence of a substantive ground of justification if the defendant is to escape liability. These grounds of justification, or defences, include the fact that the defamatory material is true and in the public interest, fair comment and even that the material was in jest. There isn't a closed list of defences but these are some of the more common ones.

Before 1998 the press were subjected to strict liability for defamatory material it published. This meant that owners, publishers, printers and editors were immediately liable for defamation if a plaintiff could prove that the material was defamatory. The defences available to individual defendants were simply not available to the press. It wasn't even necessary to prove that the publication was negligent or published the material intentionally, knowing it was defamatory. The state of the law at the time left the press in a difficult position.

In 1998 the Supreme Court of Appeal ruled on the case of National Media Limited v Bogoshi and changed the law. The court overturned its own earlier decisions and said that the classic defences to defamation were available to the press as well. However, the courts have also recognised that defamatory material published in the media can have a far reaching effect so the courts have said that the press will be held liable if found to be negligent in publishing defamatory content (the flip-side is that a publication can escape liability by proving that it acted reasonably in publishing the material concerned). In answering the question whether defamatory material was published negligently, the following factors will probably be taken into account:

But where publication is justifiable in the circumstances the defendant will not be held liable. Justifiability is to be determined by having regard to all relevant circumstances, including the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern in the information; the reliability of the source; the steps taken to verify the truth of the information (this factor would play an important role too in considering the distinct question whether there was negligence on the part of the press, assuming that the publication was found to be defamatory); and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

This new angle on the press' liability in defamation cases provides the press with an additional defence and, at the same time, a slightly more challenging test to meet. The freedom of the press is an important component of the freedom of expression which is entrenched in the Bill of Rights and decisions which followed have placed particular emphasis on the press' role in both protecting and promoting freedom of expression in South Africa. A decision which followed the Bogoshi case contained a particularly interesting quote which reveals the Constitutional Court's perception of the press:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. As Deane J stated in the High Court of Australia:

“. . . the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media.”

The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression.