Operators of Municipal Websites Beware - No links to Harry Potter!

Summary of an article by Bernd Ramming and Stephan Ott, published in BayVBl 2003, 454 ff.

The websites of municipalities are already a central point of information for foreigners and locals alike. Their importance will further increase, as more and more services are made available online. Municipalities often keep a page of recommended links to sites that are deemed interesting for visitors. This causes no problem as long as the links are to other government agencies, but what about links to commercial sites? Are they legal?

1. Today municipal websites are designed to inform, educate, and enlighten its citizens about local government functions and services. Menus provide direct access to transactions that can be completed online – from registering for a fishing license to applying for a license to do business. Foreigners often find maps and beautiful photographs of the area and its historic sights. The websites also often bring up lists of local restaurants or hotels. Pursuent to the increasing importance of municipal websites it is e.g. necessary for the operator of a hotel to appear in the link list if his competitors are already mentioned in it. Otherwise he will have a competitive disadvantage.

There has been almost no legal discussion whether municipalities are at all permitted to have link lists on their websites and under which circumstances they have the duty to provide a link to websites, whose operator demands one. The above mentioned article tries to close this gap. The authors, Stephan Ott and Bernd Ramming, examined several municipal websites for this purpose. 

2. According to the authors municipalties are allowed to link to other webpages as long as these are of relevance for the respective community. A list of accommodation possibilities within a municipality would be ok. After all one of the basic functions a municpial website serves, is to promote the area and its attractions. Such a link list can be compared to a common printed brochure that contains information about a town. 

The article states that the substantial criteria for all permission and deletion questions is the dedication of the link list. Only within its framework the duty to provide a link can exist.  Therefore the municipalities should set up policies for their link lists. So far however only few municipalities did this. In the future, the operators of municipal websites are well advised to have a written policy on their website, stating which websites could be linked. The policy has to be reasonable and viewpoint neutral. This could prevent municipalties from serious trouble. The Putnam Pit case should teach municipalities this lesson:

The analysis of municipal websites was prompted by a case in the USA, in which the operator of a website (Davidian) with information about the city of Cookeville demanded that a link to his website be established from the official website of Cookeville. According to a court decision in the Middle District of Tennessee, the publisher of the online newspaper Putnam Pit has no first amendment right to force the government of Cookeville to link from the city’s Website to his own. Prior to the request from Putnam Pit, the city had not refused a link to others who had demanded one. Putnam Pit had alleged viewpoint discrimination, because the denial was based on the controversial content of the Putnam Pit website, which is critical on city politics in Cookeville. The United States Court of Appeals for the Sixth District reversed and remanded the decision with respect to the First Amendment claim concerning the city’s Website:

"Davidian has no entitlement to a link to the city's Web site, however, he may not be denied one solely based on the controversial views he espouses, without regard for the forum's purpose and structure.

The city's establishment of a policy to limit the pool of persons who might be linked to the city's Web page is reasonable.

Nevertheless, the requirement that Web sites eligible to be linked to the city's site promote the city's tourism, industry, and economic welfare gives broad discretion to city officials, raising the possibility of discriminatory application of the policy based on viewpoint. "