Recently, I have been lecturing quite extensively on lawyer blogging. Inevitably, the question comes up as to whether there is any liability for merely linking to another website. Until last month, my answer has always been no.
The Internet is linking. To make linkers liable, either criminally or civilly, for linking would undermine the entire premise of the Internet. To have content providers looking over their shoulder or second guessing themselves about posting a link would steal not only the heart and mind of the Internet, but its soul as well.
So important is this premise to the very backbone of the Internet, Congress has passed a law insulating service providers from liability resulting from the posting of information by a third party. 47 USC 230 provides, in part:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Although this language has defended Internet service providers, message boards and websites, no court has yet enlisted it in defense of bloggers. A recent case, however, threatens to force the issue. Eric Goldman, author of the Technology & Marketing Law Blog reports that bloggers may soon be in jeopardy if a District of Columbia court carves bloggers from the “safe harbor” 47 USC 230.
The case of Steinbuch v. Cutler involves Jessica Cutler, a political intern, allegedly involved in an affair with Robert Steinbuch, staff attorney for Senator Michael DeWine. Cutler relayed details of her encounters with Steinbuch and others in her Washingtonienne blog. The blog detailed not only “RS’s” spanking, but several other sexual exploits as well. Robert Steinbuch promptly sued Culter for invasion of privacy and intentional infliction of emotional distress.
The problem lies, however, in a 10/30/06 order by the court allowing the addition of Ana Marie Cox of the blog Wonkette as a defendant. The court allowed Robert Steinbuch to add Ana Marie Cox to the lawsuit for allegedly linking to the Washingtonienne, reposting material from the Washingtonienne and allegedly working with Cutler to invade Robert Steinbuch’s privacy.