THE recent explosion in digital technologies, especially the Internet, has raised some interesting questions regarding the applicability of pre-digital era laws to these new technologies.
One controversial area has been the legal status of hyperlinks. A hyperlink allows users to go directly to another site on the Internet without typing in the site's full address.
Two years ago, Pacific Internet sued Catcha.com in Singapore over the latter's alleged use of deep links, that is, hyperlinks which referred to webpages deep inside Pacific Internet's website. The case was settled out of court.
In the United States, movie studios have filed several lawsuits to prevent people from publishing hyperlinks to the DeCSS program, which the studios claim is illegal under US law.
Interestingly, judgments on hyperlinks by US courts have varied.
In New York, the court found in favour of the movie studios and issued an injunction prohibiting a magazine from publishing hyperlinks to the DeCSS program.
In California, however, the court ruled that prohibiting hyperlinks would be too wide and extremely burdensome.
Furthermore, a website owner could not be held responsible for all of the content of the sites to which it provides links.
Both cases are under appeal, so the final status of hyperlinks under US law is uncertain.
In Singapore, the question of liability for hyperlinks to third-party sites has been raised by recent amendments to the Parliamentary Elections Act.
According to the article, 'Confusion over Internet political advertising law' (ST, Sept 1), the Government has said that non-party political websites will not be permitted to have hyperlinks 'to sites which campaign for a particular candidate or party'.
Up till now, legal disputes over hyperlinks have been civil cases. The new Singapore regulations, however, will extend criminal liability to hyperlinks for political speech.
Singapore has thus broken new ground and will be setting a precedent in Internet law as applied to hyperlinks.
In practice, however, compliance with and enforcement of the new law may prove to be difficult.
Political websites will not be permitted to have hyperlinks to other sites which contain political advertising.
As the California court put it, however, the problem is how can a website operator be held responsible for the contents of another site which he does not control?
At the time that a website operator publishes a hyperlink to another site, the remote site may not contain any objectionable material.
But what happens if the remote site later adds material which is deemed to be 'political advertising'?
Will the operator of the first website still be liable?
Is there a grace period, of say 24 hours, after which the operator of the first website will be deemed to be aware of changes in the contents of a site to which he provides hyperlinks?
What if the political website publishes a hyperlink to one site which has a hyperlink to another site which contains political advertising?
How many clicks is far enough away for the first website operator to disclaim responsibility?
Short of not publishing any hyperlinks at all, the political-website operator in Singapore may find it impossible to fully comply with the law.
In the New York DVD case, the defendant got around the injunction against publishing hyperlinks partially by instructing his readers to use a search engine to search for the program in question.
Likewise, in Singapore, could a political-website operator tell his readers to search for a particular website in a search engine, and even tell them what search terms to use to ensure that the desired website is returned by the search engine?
Strictly speaking, it would be the search engine which is returning the hyperlink.
Historically, every new technology has initially caused legal controversy as old laws are stretched to fit it. The Internet is proving to be no different.
Ngiam Shih Tung