Could your hyperlinks land you in hot water?

France's Internet Rights Forum (Le forum des droits sur l’internet or FDI) has published recommendations on the responsibilities of sites that create hyperlinks to "illicit content". One working group has been grappling with the thorny subject of for seven months – neither the European directive on ecommerce or a bill under discussion in France designed to boost confidence in the digital economy have been able to deal with the issue.

The FDI experts highlight that creating hyperlinks can become problematic when they direct users to illicit paedophilic, pornographic, Nazi or racist content or sites that are connected to pirated material that could be deemed detrimental to a third party (defamation or harmful to a brand).

The main players are individuals who exploit search engines, who "play a fundamental role" by offering "neutral areas on the web" said the FDI. Equally, like any other internet organisation, they have to "take part in the fight against illegal activity, in so far as their means permit and in as much as they can without radically altering their business".

The working group has made three key suggestions: first, not to use programs that specifically refer to illicit content; next, they should also take down any such pages as soon as they discover them; and finally they should provide web page writers with the technical assistance to avoid featuring on certain search engines.

The second point has received a cool reception from the French Association of Access Providers, who believe that the requests to take down pages from search engines would concern an extremely broad cross section of content - including image rights, privacy and brand protection issues – while the search engines don't have the expertise to appreciate fully the legitimacy or otherwise of the content or the limits of freedom of expression.

In addition, the FDI recommends that those who manually create hyperlinks – often webmasters – should check out a page before putting up a link to it, as well as refraining from adding their own comments, which could be seen as indicating their approval for the illicit content that they link to.

Web users who find themselves the victims of dubious content should where possible talk directly to the author of the content or to those in charge of running the site, the FDI said. On the legal side of things, the person who posted the hyperlink could be held responsible if it's proved that he or she committed such an infraction voluntarily.

"The fact of creating a hyperlink doesn't indicate the same level of responsibility as actually publishing the content." the FDI concluded. "It all depends on the level of approval that they [editors or journalists] indicate for the content in question."

Estelle Dumout writes for ZDNet France. Translation by Jo Best.