White. The uses and misuses of the Web cause me a lot of headaches, Brown. For instance, I'd like to include a Boston Red Sox fan section on my home page, but Green has suggested that this may be illegal.
Brown. Green can be such a stickler about these things. Is it because you don't have the permission of the team?
White. Precisely. And I'm not inclined to try to go through the rigmarole to try to obtain their permission. And I don't see why I should have to. The information will be factual and accurate, and it certainly won't disparage the Red Sox in any way. Do you need permission to start a fan club?
Brown. Probably not, unless something you do suggests that you are affiliated with or operating under the authority of the baseball team. But here's the question: When people visit your Web site, will they believe that the baseball team has given its permission or has authorized your site? If they would, haven't you in effect deceived your audience? And is there anything wrong with prohibiting deceptive conduct?
White. Well, when the newspaper runs an article about the team, it doesn't have to obtain permission. If permission were required, then lots of negative publicity could be avoided, because the team could simply deny permission to those writing undesirable material. Wouldn't that be censorship?
Green. In a way it would, White, and the distinction you make is an important one. The law provides a bundle of special privileges to the news media, because we value a free press in this country. That value is written into our Constitution. But there must be a balance between freedom of speech and freedom from deception, and that is the conundrum we will all face as the Web evolves from the culture of the wild frontier into a civilized medium of information exchange.
White. So maybe I should craft my page as a repository of news about the team, rather than a tribute to the team? And perhaps I should include some negative or critical reporting on the team, because that way people are less inclined to believe that my site is connected with or authorized by the team?
Brown. These implications and conclusions seem somewhat ironic to me. If White starts a Web site designed to blast the team and its management for its poor record over the years, then he can probably do that and the team can't do a thing to him. However, if he idolizes the team in his Web site, that may suggest to some readers that he is connected with the team, and that can be prohibited.
White. And what's wrong with that? Doesn't the team have free speech rights as well, and shouldn't it be able to prevent others from making deceptive publications, at least if those publications cause the readers to misinterpret the source of the information?
Green. It does seem ironic to me, at least, Brown, even though I suppose I can't disagree with White about the right of individuals to prohibit deception. But what if White were an Atlanta Braves fan rather than a Red Sox fan? I've read about a new law passed earlier this year by the General Assembly of the State of Georgia and would like your opinions on this. The law makes it a misdemeanor to transmit data on a computer network, if the transmission falsely states or implies an association or affiliation with another.
Brown. Isn't that already illegal, Green, as we were just discussing?
Green. Perhaps, but we had only addressed the rights of the team to prohibit the use of its name and logos, by some sort of civil action in a private lawsuit between the parties. This new law would give the State the right to prosecute people who falsely imply an association.
Brown. For me, that goes too far. Freedom of speech is a delicate right, and criminal prosecution is a harsh remedy. Even if this kind of deceptive conduct is unbecoming, it really does not seem to be criminal. Does the Georgia law not require some sort of harm to be done before a crime is committed?
Green. It seems that the harm is simply the transmission of the data that "falsely implies" an authorization or permission, Brown. No requirement of a specific harm exists, although only those who act "knowingly" can be guilty.
White. This brings a whole host of other issues to mind. For instance, when I create a link on my home page to some other site, am I "implying" that I have the permission or authorization of that other site? Do I have to include a disclaimer that all my links are simply for the information of the reader and that I am not intending to imply any affiliation or connection with the other Web site?
White. A simple hyperlink would not imply an affiliation or connection to me, Green. However, the disclaimer would not be a bad idea, if properly stated.
Green. But what if the link were not so simple, White? You have certainly seen Web sites that promoted other Web sites, and you may have wondered whether the two were somehow in a partnership. If the implication is strong due to context and content, can you remove the reader's perception of an affiliation through a simple one-line legalistic statement in small print? You know, no one reads that stuff anyway.
Brown. What if your Web site contains a link to another site, White, and the other site insists that you remove the link? Are you legally required to do so? If Playboy Magazine includes a hyperlink to the home page of the Roman Catholic Church, can the Church require that the linkage be cut? Or would that interfere with the free speech rights of the magazine?
White. It seems to me unlikely that many people will believe that there is an affiliation between the Pope and Hugh Hefner, and those who do believe in such an affiliation are probably beyond any help the law can provide anyway, Brown. Remember that critical and negative material is more likely to be legally permitted, because there is far less chance of a reader's forming a false opinion about affiliation.
Brown. Well, if other Web site owners ask me to remove a hyperlink to their sites, I'll be glad to do it. Whether or not it's legal to tread where you're not wanted, it's certainly not polite. And maybe the better answer is that these issues should be left to etiquette, and not to the law.
Edmund B. (Peter) Burke practices intellectual property and information technology law in Atlanta with Sutherland, Asbill & Brennan, a law firm with offices in Atlanta, Austin, New York and Washington, D.C. ebburke@sablaw.com