The creation of hyperlinks to hate sites is not in itself a crime. Whether this act constitutes a crime depends on the context in which the hyperlinks were created. In accordance with this principle, on September 10 2002 the District Court of Zurich acquitted a university professor of criminal charges which were based on the fact that the professor's home page contained a deep link to an anti-racist web page, which in turn contained hyperlinks to racist websites.

Pursuant to Article 261bis(1) of the Swiss Penal Code, persons who publicly call for hatred against, or discrimination of, a person or a group of persons due to their race, ethnic origin or religion, or who disseminate ideologies aiming at humiliating or slandering members of a race or ethnic or religious group, are subject to a criminal penalty. The criminal penalty further extents to persons who pursue these aims, and who organize, support or participate in such propagandist activities - for example, by promoting or organizing a public event at which a speaker calls for hatred against an ethnic group.

The court reasoned that a person who creates hyperlinks to websites containing statements that are banned under Article 261bis(1) of the Swiss Penal Code may well be subject to a criminal penalty, because this person facilitates access to such communications and thereby contributes to the criminal activity. However, before the insertion of a hyperlink to prohibited content can be penalized under Article 261bis(3), it must be shown that the person responsible is endorsing or appropriating the prohibited content. In order to determine whether this was the case, the court examined:

  • the specific context of the link;

  • the general subject matter of the website; and

  • the linking method used.

From the specific context, it appeared that the professor had created the link to illustrate some of his arguments against the university's internet user regulations. In general, the professor's website dealt with his professional activities, including his involvement in the development of the university's internet user policy. As no inline links or frames were used, it was clear that the link referred to another website, and therefore that the content of the other site had not been incorporated in the professor's website. The court found no evidence suggesting that the defendant had in any way endorsed or appropriated the prohibited content to which the hyperlink referred.

For further information on this topic please contact AndrĂ¡s Gurovits or Thomas Meili at Niederer Kraft & Frey by telephone (+41 1 217 1000) or by fax (+41 1 217 1400) or by email ([email protected] or [email protected]).