Friday, October 04, 2013

C.P. concerns can lead to cases where hyperlinks are illegal even without content display

Could linking to a website known to be likely to host child pornography, or particularly linking to a url known to load an illegal image, itself be a crime?
  
Of course, if one has viewed the image, then one has “possessed” the illegal content and already broken the law.  But what if someone linked to such a url on advice of someone else without ever viewing or loading it?  It sounds like a legally perplexing question, although maybe morally abhorrent behavior. But many states would probably interpret this as "knowingly" distributing illegal content/ 
    
It’s legally disturbing because making  a hyperlink illegal is always dangerous for the Web free-speech environment.  The issue with respect to copyright law was supposedly settled in 2000, where a judge said that a link was essentially like a bibliographic reference or footnote.  But linking to libelous content has the remote risk of making one a libel defendant oneself.  And the original 1996 Communications Decency Act (the ancestor of COPA and source of today’s Section 230) night have made it a crime to link to indecent materials, in some interpretations.  

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