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Hyperlink liability disproportionately infringes on free expression, says ARTICLE 19

(ARTICLE 19/IFEX) - ARTICLE 19 has submitted an Amicus Brief to the European Court of Human Rights regarding Mouvement Raelien Suisse v. Switzerland, arguing that imposing liability on one website for the content of another website to which it has hyperlinks will have an insidious chilling effect on the right to freedom of information.

The case concerns the refusal by the Swiss authorities to allow a public billboard campaign by the Raeliens - a religious group based in Switzerland that believes mankind was created by extra-terrestrials - said by the authorities to engage in "immoral activities" contrary to public order. In justifying the refusal, the Swiss authorities alleged that the Raeliens promote human cloning and "geniocracy", "theoretically" advocate for paedophilia (via the practice of "sensual meditation"), and contain members that are the subjects of criminal complaints of sexual practices concerning children.

On 13 January 2011, the First Section of the European Court of Human Rights held that the advert displayed a large invitation to visit their website and that the website's content therefore needed to be assessed. The website itself however, contained no mention of "geniocracy", cloning, or "sensual meditation". Instead, the decision focussed on material that was accessible via hyperlinks on the website.

In particular, the Court took into consideration a link to the website for "Clonaid", a scientific research laboratory that is operationally independent but closely linked to the Raeliens. While no civil or criminal measures have been directed against the Clonaid website, the Court noted that the organisation both advocated for and practiced an activity that was constitutionally prohibited in Switzerland. The Court ruled therefore that the restriction had been proportionate to the legitimate aims pursued (prevention of crime and the protection of health and morals) and that there had been no violation of Article 10 of the European Convention.

In its submission to the Grand Chamber of the European Court of Human Rights, scheduled for 16 November 2011, ARTICLE 19 calls on the Court to recognise both the importance of the internet as a medium for sharing and disseminating ideas and the role hyperlinks play in facilitating this process. The Court should have regard to the fact that hyperlinks are primarily used for reference purposes and that users have a free choice as to whether or not to follow them.

Since hyperlinks remain constant as the content of the linked-to website varies over time, imposing liability for hyperlinks would be to impose liability for material over which the hyperlinking website provider has no control. Penalising a website merely on the basis of a hyperlink will therefore have an insidious chilling effect on the freedom to impart information. As such, where no legal proceedings have been brought against the linked-to website and where there is no indication that the provider of the hyperlink knew the content to be illegal, restricting speech on the basis of a hyperlink cannot be said to be proportionate.

ARTICLE 19 therefore urges the Grand Chamber to establish a strong precedent for internet freedom and to affirm an important principle of proportionality: that only in the most exceptional circumstances is it reasonable to penalise one website for providing a link to another.

Read the full amicus brief here:
A19_AMICUS_switzerland.pdf (164 KB)

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