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.
3. The legality of links is in serious doubt, when the linked-to-websites
are of no relevance for the municipality at all. Above all municipalties
are obliged by law to observe strict neutrality in competition. A link to
the New York Times e.g. prompts the question why there is not also a link to
the Washington Post. Why link to Google, but not to Yahoo? A link leads
visitors to commercial websites and endorses these. A disclaimer stating
that a link does not constitute an endorsement by the city and that there is
in no connection with the operator, can not change this.
So to conlcude, the
endeavor to identify useful and interesting resources, is illicit.
Muncipalities are not allowed to serve as a general source of information
for its citizens. They may not link to every website they want to. Links
should be limited to those that meet government purposes. Municipal websites
may not link to Harry Potter websites!