Max Planck Institute for Foreign and International Criminal Law

This project studies the problems in media law that arise due to the use of hyperlinks in the World Wide Web. For the user of a WWW page, the destinations of (external) links are just as immediately accessible as the referring page itself and thus become, so to speak, a continuation of the information originally offered. Because content can be globally connected by means of hyperlinks, these links – both those that are manually placed as well as those that are automatically assembled in search engine hit lists – are the central means of accessing the plethora of information in the Internet. The possibility of criminalizing links to prohibited content thus stands in the crossfire between the rights to freedom of opinion and information of Internet users, on the one hand, and the public interest in controlling undesirable content, on the other. Because the content of the linked pages may, under certain circumstance, be assessed differently under the criminal law of different countries, the territorial limits of criminal law are also affected.

The goal of this project is to examine systematically the treatment of hyperlinks by the criminal law. On the basis of a doctrinal analysis, a stand will be taken with regard to the legal policy issue of whether, for reasons of legal certainty, special statutory norms regulating (criminal) liability for hyperlinks and search engines can be recommended. Such norms can currently be found in several countries in the rules governing the liability of Internet providers. In Germany, the adoption of such rules was advocated by some during the process of amending the laws of provider liability in 2001 and 2007.

To this end, those criminal provisions that cover the dissemination of extremist and pornographic content as well as of content that infringe upon intellectual property protections will be studied. For each individual statutory definition, it is necessary to clarify whether the act constituting the offense as described in the law can be "perpetrated" by the setting of a hyperlink or whether the setting of a hyperlink merely constitutes the "abetting" of the offense of another. Additionally, questions associated with general criminal law doctrines arise in this context. Here, the attribution of the illegal content of a third party to the setter of a hyperlink takes center stage, an action that would separate criminal activity from the constitutionally protected distribution of information. In this context, the duty of care that the link-setter must satisfy with regard to determining the legality of the content of the link destination must be established. This is especially true with respect to the administrative offenses contained in the acts regarding the protection of young persons (Jugendschutzrecht), offenses that can also be committed negligently. Here the factor of social acceptability or permissible risks, which can also modify criminal liability for aiding and abetting, is central. As far as crimes of omission are concerned (Unterlassungsdelikte), it is necessary to clarify who bears responsibility for the risk that an initially unobjectionable link might, if the destination page is altered at some point, end up leading to illegal content.

Hyperlinks and the responsibility for the content to which they lead are pivotal for the Internet. Due to the globality of the Internet, the issues involved need to be addressed worldwide. The analysis of German criminal law doctrine is a first step in this process. Thus, following the conclusion of this dissertation project, which is being supervised by Prof. Dr. Ulrich Sieber at the University of Munich, the possibility of exploring this area further within the framework of a comparative legal research project should be considered.