Liability for hyperlinking

Question

Is there any jurisdiction which holds a website liable for policies of another website for hyperlinking to that website.Liability refers to any requirement like tracking number of link clicks or anything like that mainly.The hyperlink is to legitimate websites atleast at time of hyperlinking ok.

Answer 1

Caveats

Obviously, I can't know the law of every jurisdiction and based my answer below on U.S. law. I have seen cases over the last few years on all of these points, but don't have all of the relevant references immediately at hand and I am instead working from memory.

It is also a new and rapidly developing area of the law. People are always coming up with new kinds of conduct that were never thought of before which when analyzed appear to violate some kind of legal duty.

A good rule of thumb is that if something novel seems intuitively wrongful it is usually possible to come up with a legal theory to impose liability for doing it by framing the situation in a way that analogizes it to more old school wrongful conduct.

Overview

All of these forms of liability require proof of more than the link alone, even though the link establishes one necessary part of the liability claim.

There must also be some sort of contract or implied-in-fact agreement of people affected by the link, rather than arising purely from posting the link alone under a statute or tort law (tort law is the law of legal liability enforceable in lawsuits by a person harmed by wrongful conduct on grounds other than a contract or statute).

Generally, that agreement is either an abuse of an otherwise legitimate contractual relationship by one of the parties to the contract (or an affiliate of one of the parties to the contract), or is agreement to work together to further someone else's tortious or criminal conduct. (Tortious conduct is wrongful conduct that gives rise to civil liability that can be enforced in a lawsuit, whether or not it is a crime).

Generally speaking a link that was legitimate at the time and became illegitimate after the fact wouldn't sufficient for third-party beneficiary liability in this way. This is because most kinds of liability require intent to do something, knowledge that you are doing something, recklessness, willful and wanton conduct, negligence or some other threshold of liability greater than mere strict liability after the fact.

Put another way, I have never seen a case where there is a legal duty to police links that have gone bad after they are posted in circumstances where the person who let the link go bad did expressly undertake an obligation to keep the links valid and to regularly monitor them, which almost no one does.

An example that would be the exception to the rule would be a third-party website provider to a business that has a contract to regularly update and monitor the firm's website, for a firm like a grocery store or retail vendor that doesn't want stale coupons or discounts to be advertised, where this might be a breach of contract by the active third-party firm website operator.

For most purposes, there is no liability

Linking to a website does not, under U.S. law, constitute a copyright violation or a basis, in and of itself, for a defamation claim or trademark violation, related to the content of the destination site.

I am not comfortable that this would be true in all jurisdictions.

For example, I wouldn't be surprised if a country that adopted Islamic law as its supreme law would impose criminal or quasi-criminal liability upon someone linking to a website that violated that country's blasphemy laws, even the the linked site is legitimate in the place where it is made.

TOS Violations

Some links that exist for SEO (search engine optimization) purposes to a legitimate website can violate a terms of service (TOS) agreement at the website where the link is placed or of the Internet service provider (ISP) involved, with the usual consequence being that the website or Internet service provider can drop you and cease to provide service to you, even if you paid a subscription fee for that website or ISP that is not refundable in the case of a TOS violation.

Strictly speaking, this isn't really "legal liability" but it would provide a justification for a self-help remedy that causes economic harm to the person engaged in violating the TOS with SEO conduct.

Conceivably, a TOS violation could establish a duty that could provide a basis for someone other than the firm with whom the TOS violator agreed to the TOS, if the TOS violation caused harm to a third-party beneficiary of the TOS, but I've never actually seen a case brought successfully on that theory. And, generally speaking, a link to a legitimate website wouldn't cause legally recognized harm to a third-party who clicked on it.

One situation where a TOS violation might give rise to liability to a third-party, however, would be a link designed to facilitate a denial of service attack that causes economic harm to the victim by preventing it from doing economically beneficial business with actual customers.

Conspiracy liability

Conceivably, if someone is directly to a website that is being used to conduct securities fraud or some other kind of fraud, or child pornography, there could be liability on a civil conspiracy or a criminal conspiracy to commit the crime at the linked site, but the link in and of itself wouldn't suffice to prove that case.

Instead, one would have to show that there was an overt coordination with the primary violators at the destination website by the person linking to them, as part of an intentional effort to further the conspiracy and that the link was one overt act in furtherance of the conspiracy (generally also including other overt acts and generally in a case where the plaintiff or criminal prosecutor can show some motive to advance the conspiracy such as a sharing of profits from the conspiracy, or a family relationship to the primary offender, or reason to want to seek revenge against the victim(s) of the primary offense).

The last sentence of the question, however, seems to not apply to this particular situation when it says:

The hyperlink is to legitimate websites atleast at time of hyperlinking ok.

Click Fraud

SEO type links can also give rise to liability if you have a contract with a service that compensates you based upon the number of times that a web address is viewed (a.k.a. per "click"), for example, a Spotify song or a Webtoon comic or a streaming video service or an online marketing contract where you are being paid for sending traffic to a site that is marketing to third-parties. These cases are often called "click fraud" cases even when the theory of liability is not common law fraud.

The theory of liability in these case is that you have (1) breached the duty of good faith and fair dealing, or (2) breached a specific contractual term to that effect, or (3) engaged in fraud (both civil and potentially criminal wire and mail fraud), or (4) engaged in the deceptive trade practice of false advertising (potentially a third-party or attorney-general could do this too, but the damages cases would be very weak). This is because either (1) you are being paid for third-party clicks intended to reach the destination in question, but are artificially inflating that count with links that you or (2) your confederates generate, or by links that mislead third-parties into going to a site that they will react negatively too, tarnishing the reputation of the person paying for the clicks pursuant to the contract.

Usually lawsuits of this type a brought by the party paying for the clicks against a person who was overpaid until a click based compensation contract to recover an overpayment under that contract arising due to this misconduct. But Wikipedia identifies some circumstances in which there can be suits involving non-contracting party:

A secondary source of click fraud is non-contracting parties, who are not part of any pay-per-click agreement. This type of fraud is even harder to police, because perpetrators generally cannot be sued for breach of contract or charged criminally with fraud. Examples of non-contracting parties are:

Competitors of advertisers: These parties may wish to harm a competitor who advertises in the same market by clicking on their ads. The perpetrators do not profit directly but force the advertiser to pay for irrelevant clicks, thus weakening or eliminating a source of competition.

Competitors of publishers: These persons may wish to frame a publisher. It is made to look as if the publisher is clicking on its own ads. The advertising network may then terminate the relationship. Many publishers rely exclusively on revenue from advertising and could be put out of business by such an attack.

Other malicious intent: As with vandalism, there are many motives for wishing to cause harm to either an advertiser or a publisher, even by people who have nothing to gain financially. Motives include political and personal vendettas. These cases are often the hardest to deal with, since it is difficult to track down the culprit, and if found, there is little legal action that can be taken against them.

Friends of the publisher: Sometimes upon learning a publisher profits from ads being clicked, a supporter of the publisher (like a fan, family member, political party supporter, charity patron or personal friend) will click on the ads to help. This can be considered patronage. However, this can backfire when the publisher (not the friend) is accused of click fraud.

This link identifies and describes in some detail five leading click fraud cases:

1. Motogolf.com vs Top Shelf (2020) – sporting goods, ongoing case

2. TriMax Media vs Wickfire (2017) - digital advertising, $2.3 million

3. Satmodo vs Whenever Communications (2017) - satellite phones, dismissed

4. RootZoo vs Facebook (2012) - ruling denying motion for class certification

5. Lane’s Gifts and Collectibles vs Google (2006) - $96 million settlement