Let Us Link   

Linking to a Web site should have the same free-speech protections as printed journalism.

USAGE NOTICE: It has come to my attention that some readers are e-mailing and publishing unauthorized links to past columns. The online versions of these works are the property of American Journalism Review. You may link to them with prior written consent of this publication, for a nominal fee.
If you buy that, I've got a slightly used dotcom company for sale at a bargain price.
You can actually link to anything I post on the Web, whether I approve or not.
That fact, unfortunately, has been obscured by complex court cases and by Web site "terms of use" statements that perpetuate the confusion.
Ironically, news sites are some of the worst offenders. Here are a few clauses extracted from the user agreements of online newspapers:
"If you operate a Web site and wish to link to Latimes.com, you may link only to the home page, www.latimes.com, and not to any other page or subdomain of Latimes.com."
From washingtonpost.com: "You generally do not need to request reprint permission if you are requesting a text link only back to the washingtonpost.com website. We reserve the right however, to revoke permission at any time for such text links."
The most audacious example is the Albuquerque Journal, which in partnership with a company called iCopyright.com, attempts to levy a linkage fee. An icon at the bottom of story pages opens a form where people may "purchase" the right to link to Journal stories for $50 each.
Everyone should know that a site can't forbid hyperlinks to its pages, any more than I can forbid you from telling someone how to locate this column. While there are technical tricks to foil linkers, verbal warnings have no weight.
Those policies were probably concocted to discourage commercial exploitation, defamation and framing--a way of linking so that the original site's navigation, branding and advertisements "frame" the other site's content. Those practices may be grounds for legal action, but they don't warrant a blanket ban on hyperlinks. Aside from being totally unenforceable, such restrictions contradict journalists' fiercely defended right to link to information sources.
What about liability for links to illegal or defamatory content?
Journalism groups held fleeting interest in two recent cases involving Ticketmaster that alternately supported and then denied a site's right to "deep link" to a page within another site, bypassing its homepage. But those rulings were really about commerce, with no serious implications for deep linking in news stories.
Similarly, the rash of MP3 cases surrounding Napster touch on the concept of hyperlinking and whether linking to a Web site that tells you how to do something illegal is akin to facilitating a crime. But the context is copyright infringement, not freedom of the press.
The case that finally fired off free-press alarms was brought by the Motion Picture Association of America against 2600.com, the online version of a well-known hacker magazine. In August, a federal district judge banned 2600.com from publishing or linking to a program called DeCSS, which descrambles copyright-protected digital movies so that they can be viewed on unauthorized players. While copyright issues triggered the case, it received special attention because 2600 is an informational publication.
That should scare reporters for lots of reasons enumerated in an amicus curiae brief filed by the Online News Association, the Newspaper Association of America and several other journalism groups when the case was appealed in January.
The news organizations assert that hyperlinks are intrinsic to online reporting and demand the same First Amendment protections as plain text. Linking to an information source is no different from providing a phone number or publication title in a newspaper story, except that the reader can locate that source almost instantly.
They also reject the district judge's liability test because it does not require actual malice. That leaves the door open to prior restraint against any links to DeCSS code even for neutral reporting purposes--which is precisely what 2600.com's publisher claims.
Most Web reporters don't work for hacker magazines, but overbroad tests invented in cases like these could ostensibly influence the way we cover hate crime, terrorism or computer viruses.
There are many ethical and editorial reasons why a reporter should be wary about linking to external sites, such as accuracy and timeliness. Context also matters; a link can be as defamatory as a printed word. But links used in the course of news reporting deserve the same free-press protections as nonlinked speech. That is not a gray area, and should never be.