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Legal Issues Raised By Linking To Another Site

By: J. D. Obenberger, Esq.

Linking is a very common means for generating traffic in the adult internet arena. The use of linking is practical and makes sense from any standpoint. Niche sites deliver traffic to different niche sites, hopefully converting unprofitable traffic into revenues. Contrary to the understanding of many Webmasters, there are legal issues to consider in this arena. For instance, are you aware that if you link to a site that is conducting illegal activity, for instance publishing bestiality content, you could be pursued by the FTC for driving customers to that site?

In the adult arena, linking to other sites is a common event. Ironically, this is not the case for many mainstream sites. Many Webmasters will link to non-adult sites in an effort to convert traffic in any profitable way possible. Many mainstream sites, however, are owned by publicly traded companies and are sensitive to being portrayed by an angry investor as doing business with adult businesses. Webmasters should use common sense in their efforts to handle traffic, particularly when they distribute traffic onto a mainstream site.

Turning back to the bestiality example in the first paragraph, what can Webmasters do to protect themselves from another adult site uploading content that is perceived as illegal? This is a very relevant concern in light of the loose standard for obscenity in the United States. Since the standard for obscenity looks to local values, a Webmaster must determine whether they are comfortable linking to a site that might be deemed obscene in, for instance, the deep south. One option to provide a layer of protection against liability is a link disclaimer. The disclaimer will note that the Webmaster has no control over the content of the site being linked to and makes no representations regarding the content. This disclaimer can be placed at the bottom of exit consoles, on link pages or in the terms and conditions of a site depending on the site created by the Webmaster.

A bigger issue with linking is what is known as deep or bypass linking. As most Webmasters are aware, sites with significant traffic volume sell advertising space on their site and, thus, welcome as much link traffic as they can get. Webmasters can run into trouble, however, when they bypass the designated page on the site in question to link to a specific page that contains information or products they feel are more apt to convert the traffic. In bypassing the space with advertising, often the front page, the Webmaster will violate the terms and conditions of the site in question. This can lead to being barred from linking to the site in question as well as participating in its affiliate programs.

In discussing linking, one must always address issues related to framing. For the purpose of this article, framing is not referencing the way a Webmaster sets up their site. Instead, it references the effort to create a frame and then bring content from other sites into the Webmaster's site with the frame enclosing that information. This is not a common practice in the adult field, but it is prevalent enough to mention. The primary issue is that the framing site is using the content of another provider for commercial gain. Without an agreement between the parties, this is a violation of copyright. The content site can also make a claim of trademark violation. In short, unless you have the specific permission of the site from which you are taking content, this type of framing is illegal and will undoubtedly result in legal action against you.

Linking is a common and effective means of creating and handling traffic in the adult arena. There are very few legal issues to be faced by the Webmaster. By using a disclaimer and common sense, the adult Webmaster can avoid any liability exposure in their linking practice.

The above discussion is intended to be a general commentary on linking issues. Each situation is different and this article is not intended as legal advice for your specific situation. Further, nothing in this article is intended to create an attorney-client relationship. If you have additional questions, please contact J. D. Obenberger at www.adultinternetlaw.com.

J.D. Obenberger, Esq. - AdultInternetLaw.com                

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