Hyperlinking

Hyperlinks, more commonly known simply as ‘links’, are a feature found on most pages on the world wide web.

 

It is part of general practice for Web sites to link to each other, and without hyperlinks the world wide web would not be the rich source of information that it is. One of the key indicators of a Web site’s success or popularity is the number of users – also a generator of income for many Web sites – and one of the best ways of getting people to go to a Web site is by having other Web sites include links to it.

 

As a consequence, having a third party Web site link to an organisation’s Web site is generally seen to be a benefit for that organisation rather than something to call the lawyers about. However, certain types of links have been a source of controversy and the cause of legal issues in the past decade.

 

Types of link

 

Links can be divided into the following main categories:

 

• Embedded link. A text or image (on a Web site) containing a link to a Web site,  enabling users to go to the main page of another Web site using that text/image. The text/image could be anything; it does not necessarily need to include the name of the Web site being linked to. The link could be a single word or a whole page of text, a small image or a large one.
  
• Deep link. A text or image (on a Web site) that enables users to go to a page within another Web site, without having to go through the main page of that Web site. Like embedded links, the text/image does not necessarily need to include the name of the Web site being linked to.
  
• Framing. Displaying, in a ‘frame’ that is part of a Web site page, a page from a third party Web site. A good example of this is the page that is displayed if you click on a result in Google Image Search (see below).

Links are not restricted simply to HTML pages; they can be found in XML (eXtensible Mark-up Language – RSS newsfeeds being a good example) pages, e-mails, and – with much software now being written on the assumption of users having Internet access – word processor documents, spreadsheets, PDF documents.

 

I shall now consider each of the types of links against types of legal risk in an EU and US law context.

 

Is there a doctrine of implied consent?

 

At their most basic, links are simply a means of referring to another Web site. Because of this, the courts of some jurisdictions have talked of Web site owners giving implied consent to others linking to their publicly accessible Web sites. The Court in the (US) Ticketmaster case of 2000 (Ticketmaster Corp v Tickets.com Central District of California, 27 March 2000) said that linking is ‘analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently’.

 

This doctrine of implied consent cannot be applied to all linking scenarios because:

• some sites expressly prohibit being linked to
  
• some types of links, such as framing, are far removed from basic links and so do not fit within the library card analogy
  
• some links, even basic ones, are less ‘innocent’ than others.

This means that, when an issue with a link arises, the lawyer advising the annoyed client whose site has been linked to, or the client on the receiving end of a claim from a site that has been linked to, must consider the law in detail.

 

Country-specific prohibitions

 

Whilst the remainder of this article looks at legal issues common to all EU and US countries (eg the implications of copyright law), it is worth noting that a country may have specific prohibitions against certain types of links. In those jurisdictions, with those types of links, further analysis may therefore not be required.

 

For example, under French law, when linking to Web sites, the Web site to contain the deep link or framing Web site must first obtain the consent from the Web site that will be framed or deep linked to (Havas & Cadre Online v Keljob, 26 December 2000). This is on the basis that the deep linking or framing may constitute unfair competition or an ‘act of parasitism’.

 

When the materials linked to are unlawful, this may also raise issues in certain jurisdictions.

 

In a 2005 case, a German Court held that the owner of a Web site that linked to a Web site containing unlawful software was liable for aiding and abetting unlawful activities (see http://www.linksandlaw.de/urteil72-heise-link-kopiersoftware.htm).

 

In a 2002 case, a Netherlands Court ordered a Web site that had links to Web sites that contained unlawful information to remove those links (Deutsche Bahn v Indymedia NL [2002] Amsterdam).

 

Copyright infringement

 

Traditionally, copyright arises when certain types of ‘works’ are created, and it protects those works. When considering if something is protected by copyright, one of the key considerations of the courts has been whether ‘sufficient’ effort was needed to create that work. For example, the recent UK case of Cembrit Blunn v Apex Roofing [2007] EWHC 111 (Ch) held that a business letter was a literary work protected by copyright because its creation had involved sufficient skill and labour.

 

Embedded and deep links

 

On the consideration of the effort factor alone, most text-only embedded links and deep links would fail to attract copyright protection because, being one or a few words at most, the creation of the text-only link did not involve sufficient effort. Even if copyright did exist, there is no copyright infringement issue because, whether the link is embedded or deep, no actual copying of the Web site linked to is involved. The US Court in the Ticketmaster case held that deep linking does not constitute copyright infringement because no copying is involved, and the user is not deceived into thinking that the page linked to is anything other than what it is.

 

From a technical perspective the creation of a text-only link of sufficient length so as to contain enough text to infringe a ‘substantial part’ of a copyright work is not out of the question. The Scottish Shetland Times case (1997 SCLR 160) concerned the defendant’s Web site which reproduced headlines (usually consisting of 8 or so words) from the claimant’s Shetland Times news Web site. The headlines were links to the relevant story on the claimant’s Web site. The Lord Ordinary held that the copying of the headlines by the defendant might constitute copyright infringement under the Copyright, Designs and Patents Act 1988. The ruling suggests that a claimant may be able to establish copyright infringement where:

• a link consists of text reproduced from a third party; and
  
• the claimant can demonstrate that sufficient effort was put into creating that text.

Even if copyright in the relevant text is established, defences may be available to the linking Web site such as fair dealing.

 

When assessing embedded and deep links in image form, the issue of copyright infringement becomes more of an issue. The image used could be a direct copy of, or an adaptation of, another image that is protected by copyright. In the US case of Perfect 10 v Google (CV 04-9484 AHM), a District Judge of the Central District of California ruled that thumbnail images that acted as links to the original images could infringe the copyright in those original images. That case concerned Google’s image search engine, which was displaying thumbnails based upon Perfect 10’s images – of a pornographic nature – in its search results. The District Court ruled that no defence or exemption under US copyright law applied to the thumbnail images. In its ruling, the US Court of Appeal for the Ninth District disagreed, holding that Perfect 10 was unlikely to overcome Google’s fair use defence. The Court held that the defence was likely to apply because Google had used the Perfect 10 images in a fundamentally different way to that intended by Perfect 10. (The US Court of Appeals referred a number of points which are relevant to linking back to the District Court for a further ruling so US law in this area has a number of uncertainties at this time.)

 

Framing

 

In terms of framing, there are no reported UK copyright infringement cases addressing this issue. The writer submits that the UK courts would also apply the logic used in the Perfect 10 case previously mentioned, which addressed this matter. Users of Google Image Search, having performed a search, can click on one of the resulting thumbnail images to be shown the Web site page containing the original image in a frame. The US court ruled that the display of a Web site in a frame within another Web site does not infringe the copyright of the ‘framed’ Web site, because it is the Web sites themselves that transfer the Web site information to the user’s browser; the Web site creating the frame is not involved in the transfer process. The US Court of Appeals for the Ninth District confirmed the District Court’s ruling on this point.

 

Whilst framing a complete Web site is in most jurisdictions fine, care must be taken where only a specific element or elements of a Web site are framed. If the moral rights of the author or Web site content have been asserted, omitting to identify the author in the frame could lead to a claim for infringement of moral rights. In a 2002 US case, the US Court of Appeal for the Ninth Circuit ruled that framing images from another Web site, without framing the rest of the Web site, violated the owner of the copyright in the framed Web site’s right to publicly display its works (Leslie A Kelly v Arriba Soft Corporation, February 2002).

 

Whilst under US law (and probably UK law) framing does not generally constitute copyright infringement, this is not the case in all EU countries. Under German law, following a 2002 Court ruling, framing is considered to amount to the copying of a Web site and therefore requires the consent of the owner of the copyright in the framed Web site (Decision of the Regional Court of Munich (LG Muenchen I), 14 November 2002). In that case, the court held that consent would not normally be required on two grounds. The first ground is a right under German law to make a private copy of a copyright work. The second is that it could be inferred that the framed Web site had given consent by being freely accessible on the Internet. Of course, if the framed Web site expressly states (in a copyright notice or in its terms and conditions of use) that framing is prohibited, it is difficult to see how this second ground could be relied upon.

 

Links to private Web sites

 

You must also consider whether the Web site linked to (whether by embedded or deep link) is private access, for example if it is password protected. A 2003 case suggests that the German courts may consider that such a link constitutes copyright infringement (http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Sort=3&Datum=2003&Art=pm&anz=96&pos=0&nr=26553&id=1058556825.88). However, this point is not certain because this is merely what can be deduced from the German court’s ruling. The court held that a deep link to a public Web site is not copyright infringement because the Web site owner has made the Web site publicly available and that if Web sites did not want deep links to be used, they should implement technical measures to prevent them.

 

The EC Copyright Directive – does this change things?

 

The EC Copyright Directive (2001/29/EC) means that a consideration of ‘traditional’ copyright law alone is not sufficient to address all copyright issues. The Directive gives the owners of copyright works the exclusive right to make their work available to the public.

 

Could a link constitute the making available of a work, meaning that a third party linking to a Web site infringes the exclusive right given by the Directive? This point has not yet been dealt with in any reported case, so for the moment it remains theoretical. I suggest that the ‘doctrine of implied consent’ to linking discussed above is highly relevant here. It seems unlikely that the courts would rule unlawful established (and generally ethical) practice to impose a regime of needing consent to make even the most basic of links. However, this possibility cannot be ruled out. In addition, as has been noted, a ‘doctrine of implied consent’ cannot be easily applied to deep links, framing, or to sites that expressly prohibit linking.

 

Database rights infringement

 

The Directive on the Legal Protection of Databases (96/9/EC) (‘Database Directive’) was introduced to deal with the perceived problem of databases not receiving adequate or consistent protection across the EU. Following the much-discussed ECJ guidance on the Directive given in the British Horseracing Board (BHB) and Fixtures Marketing cases (C203-02, 9 November 2004), it is debateable whether the Directive currently gives adequate protection. This is something that has been discussed widely, however it is outside the scope of this article to contribute to that debate. The implications of the ECJ’s guidance are however touched upon below where relevant.

 

In outline, the database right applies to ‘databases’ that meet certain criteria. ‘Database’ is defined broadly as ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. Article 7(1) of the Database Directive states that member states must give database owners the database right where ‘there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents’ of the database. The database right itself is the right to prevent the ‘extraction and/or re-utilization of the whole or of a substantial part… of the contents of that database’ (Article 7(1)). Applying the Database Directive to links, the question is whether or not embedded linking, deep linking, or framing would constitute extraction or reutilisation of the whole or a substantial part of a database.

 

There are a number of cases in which courts have held the Database Directive to apply to Web sites, and in which the Database Directive has been applied to deep linking. Before discussing these cases, it is worth noting that all the reported cases about linking and the database right were decided before the BHB and Fixtures Marketing rulings.

 

In the BHB and Fixtures Marketing rulings, the ECJ held that for the purposes of the Database Directive, the term ‘database’ should be interpreted broadly. The practical effect of this is that the Database Directive will continue to (potentially) apply to Web sites and links. Whether a particular Web site or link will be protected by the database right depends upon whether there has been a substantial investment as required by Article 7(1) of the Database Directive. On this issue, the ECJ held that the investment must be in the database itself; namely in the obtaining, verification or presentation of the contents of the database. The investment in the content that populates the database does not count as part of the investment in the database.

 

Applying the ECJ ruling, the Court of Appeal held in the BHB case that the database right did not apply to the database in question. That database was a massive, constantly updated, database of horse race information, costing the BHB some £4 million per year to maintain. The Court held that these costs were incurred in creating the data, not obtaining, verifying or presenting the data.

 

The Fixtures Marketing cases were to do with the England and Scotland football fixtures lists, developed and administered by Fixtures Marketing at an annual cost of £11.5 million. Again, the ECJ ruled that this cost related to putting together the data itself; there was no independent cost associated with the obtaining, verification or presentation of the contents of the fixtures database and therefore did not attract a database right.

 

Before the BHB/Fixtures Marketing cases, there were a number of cases where the Directive was applied to deep links. The most significant cases appear to be German. In the 2001 NewsClub dispute, a regional German court ruled that a German newspaper’s database right in its online Web site had been infringed by a search engine displaying (as search results) deep links for pages of the news Web site. This result was subsequently appealed but the dispute settled before the appeal court could rule. In the Paperboy case, the German Federal Court of Justice ruled that a search engine had not infringed the database right of an online news Web site by deep linking to that Web site’s articles. (Reports on both of these cases can be found at www.linksandlaw.com.)

 

Following the ECJ rulings in the BHB/Fixtures Marketing cases, it seems unlikely that a database right would have been found to exist in the above cases had they arisen now; it seems unlikely that a Web site could demonstrate a significant investment in obtaining, verifying or presenting the Web site contents.

 

The writer could not find any reported cases of the Database Directive being used by Web site owners to stop embedded links or framing, although again the BHB/Fixtures Marketing ruling makes it unlikely that such claims would succeed now. 

 

Trade mark infringement

 

Where a link is similar or identical to a registered trade mark, the owner of that trade mark may be able to pursue the creator of the link for trade mark infringement. In both EU countries and US states, trade mark infringement could be alleged by the owner of an alleged mark in any of the following circumstances:

• The text/graphic of an embedded/deep link is identical to the registered mark, and is used for the sale of or advertisement of goods/services that are identical to the goods/services covered by the mark.
  
• The text/graphic of an embedded/deep link is similar to the registered mark, and is used for the sale of or advertisement of goods/services that are similar to the goods/services covered by the mark. This will only be infringement where the public are likely to confuse the two marks.
  
• The text/graphic of an embedded/deep link is similar to the registered mark (whether or not similar/identical to those covered by the mark), and the third party’s use of the mark is taking unfair advantage of the registered mark’s established reputation.

In some circumstances, suing for trade mark infringement might also be used to deal with unwanted framing. For example, in the previously mentioned French case of Havas v Keljob, the Paris Commercial Court held that the framing Web site infringed the claimant’s trade mark, which was featured on the claimant’s Web site.

 

Passing off and similar laws

 

To paraphrase Reckitt v Borden [1990] 1 All ER 873, a defendant will be liable for the UK tort of passing off where:

• the claimant has goodwill or a reputation in certain goods/services; and
  
• the defendant has made a misrepresentation that leads (or is likely to lead) to the public believing that the defendant’s goods/services are the claimant’s; and
  
• that misrepresentation causes the claimant loss or damage.

An obvious passing off scenario would be an embedded or deep link, in text or image form, that includes a mark similar or identical to a third party’s brand. However, in all but the most sophisticated of situations (eg a Web site that frames information about goods/services from a third party’s Web site in such a way as to appear to be that site, whilst taking the payment for goods/services sold directly) it seems to the writer that establishing passing off would be extremely difficult; would the public really think that they were using the claimant’s Web site when the Web site address and other features of the defendant’s Web site suggest otherwise?

 

Whilst the tort of passing off is a remedy said to be unique to the UK, many EU countries have remedies that could apply if similar circumstances arose in those jurisdictions. In Germany, Italy and Spain, such activity might be regarded as unfair competition. In France, it might be regarded as an ‘act of parasitism’.

 

Express prohibition of linking

 

Web site owners often place notices purporting to prohibit or limit the ability of third parties to link to their Web site. These notices are either placed directly on to Web site pages or, more commonly, within Web site terms and conditions. There are two main ways in which a Web site owner could seek to rely on such a prohibition.

 

Firstly, the owner could argue that the prohibition was part of a contract between the Web site owner and the Web site user (ie, in these circumstances, the creator of the link) and that failure to comply with the prohibition was a breach of contract. The owner would have to demonstrate that a contract had come into existence and the usual contract law rules would apply in determining whether there was indeed a contract.

 

Secondly, the owner could seek to rely on the EC Copyright Directive (previously discussed), arguing that the express prohibition showed that the owner was asserting its exclusive right to make the Web site available to the public, and that the creation of a link was a breach of this right.

 

There do not appear to have been any reported cases in which Web site owners have sought to rely on either argument, and therefore both manners of enforcing a prohibition are for the time being theoretical.

 

Industry-specific regulation and codes

 

When linking to the Web sites of competitors, in addition to the above rules you should consider whether the link falls foul of the rules of the relevant industry. For example, section 18 of the DM Code of Practice, which applies to members of the UK Direct Marketing Association, contains various rules about links in interactive content.

 

The E-commerce Directive

 

Article 21 of the E-commerce Directive (2000/31/EC) states that in July 2003 and every two years after that, the Commission shall submit a report to other EC bodies on whether the Directive needs adapting. In particular:

‘the report shall… analyse the need for proposals concerning the liability of providers of hyperlinks…’

 

In the 2003 report, the Commission appeared to approve of the established law on linking across the EU (the report is at http://eur-lex.europa.eu/LexUriServ/site/en/com/2003/com2003_0702en01.pdf). The Commission saw no need to introduce new laws to do with the liability of those making links. The second report has not yet been issued.

 

What linking policy should Web sites adopt?

 

The above discussion shows that there are a variety of potential liabilities associated with linking to a third party’s Web site. The key points to be drawn from the above are these:

• Do not link to sites containing unlawful material, such as pirated software or music.
  
• Consider relevant laws and applicable industry rules and codes of conduct.
  
• Consider whether there are any prohibitions on linking in the relevant jurisdiction.
  
• Embedded links simply referring to the name of the site being linked to are generally OK. Be cautious when using longer texts or images as the link: such text/images could infringe copyright, a trade mark, constitute passing off (or similar) or be defamatory.
  
• With deep links, follow the same basic rules as for embedded links.
  
• Check the terms & conditions of the Web site you want to link to. If the terms prohibit linking, consider obtaining permission as a practical way of removing any potential legal issue. If you are reluctant to obtain permission, consider whether the prohibition is legally enforceable; if it is not, you do not need permission.
  
• With framing, ensure that it is obvious to the user that a third party’s Web site is being displayed as part of the page. Frame all of the relevant Web page: avoid only framing parts of the Web site.

 

Alex Newson is a Solicitor in the Intellectual Property & Technology team at Freeth Cartwright LLP: alex.newson@freethcartwright.co.uk. See their blog at http://impact.freethcartwright.com