This is adapted from an article that I wrote for the law for the June/July 2007 issue of the Society of Computer & Law's magazine, the accurately titled Computers & Law.
What linking policies should websites apply?
As will be seen, there are a variety of potential liabilities associated with linking to third party websites. The key practical points are:
- Check the terms & conditions of the website you want to link to. If the terms prohibit linking, consider obtaining permission. If you are reluctant to obtain permission, consider whether the prohibition is legally enforceable; if it is unenforceable you do not need permission.
- Do not link to sites containing unlawful material, such as pirated software or music.
- Consider 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 linked to are generally okay. 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. Consider asking for permission before deep linking.
- With framing, ensure that it is obvious to the user that a third party website is being displayed as part of the page. Frame all of the relevant web page: avoid only framing parts of the website. Watch our where the frame includes trade marks.
Types of link
Links can be divided into the following main categories:
- Embedded link. Text or an image containing a link to a website. The text/image could be anything; it does not necessarily need to include the name of the website being linked to. The link could be a single word or a whole page of text, a small or large image, animated or static.
- Deep link. A text or image (on a website) that enables users to go to a page within another website, without having to go through the main page of that website. Like embedded links, the text/image does not necessarily need to include the name of the website being linked to.
- Frames. Displaying a page from a third party website in a ‘frame’ within a website page.
Is there a doctrine of implied consent?
At their most basic, links are simply a means of referring to another
website. Because of this, the Courts of some jurisdictions take that
view that the owner a of public websites gives implied consent to link
to their site. One analogy used by the Courts is that a link is like a
library reference card - such a card tells people where to find a book
within the library, and a link tells people (or their browsers) where
to find a website.
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 so far removed from basic links that it is difficult to argue implied consent;
- Some links are less ‘innocent’ than others.
Country-specific prohibitions
Some jurisdictions prohibit certain types of links.
For example, under French law, when linking to websites, the website
to contain the deep link or framing website must first obtain the
consent from the website that will be framed or deep-linked to.
When the materials linked to are unlawful, this also raise issues in certain jurisdictions:
- A German Court has ruled that the owner of a website that linked to a website containing unlawful software was liable for aiding and unbetting unlawful activities.
- In a 2002 case, a Netherlands Court ordered a website to remove links to websites containing unlawful information.
Copyright infringement
Traditionally, copyright arises when
certain types of “works” are created, and 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.
Embedded and deep links
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, there
is no actual copying of the website linked-to.
However, even a short hyperlink text could give rise to a copyright infringement claim 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.
With embedded and deep links in image form, 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.
Even if copyright in the relevant text or image is established, defences may be available such as fair dealing.
Framing
There are no reported UK copyright infringement cases
addressing this issue. However, arguably the display of a website in a
frame within another website does not infringe the copyright of the
framed website, because it is the websites themselves that transfer the
website information to the users browser; the website creating the
frame is not involved in the transfer process.
Whilst framing a complete website is in most jurisdictions fine, care must be taken where only a specific element or elements of a website are framed. If the moral rights of the author or website content have been asserted, omitting to identify the author in the frame could lead to a claim for infringement of moral rights.
Whilst under US law (and probably UK law) framing will 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 website and therefore requires the consent of the owner of the copyright in the framed website, although the doctrine of implied consent will apply in most cases.
Links to private websites
Linking to a private access website,
for example one with password protection, may give rise to legal
issues. A 2003 case suggests that the German Courts may consider that
such a link constitutes copyright infringement.
The EC Copyright Directive – does this change things?
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 website infringes the exclusive right given by the Directive? This point has not yet been dealt with in any reported Court case, meaning that for the moment it remains theoretical. My view is that, at least for simple links, the doctrine of implied consent would apply. Of course, things become more tricky with more complicated types of links.
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 ECJ guidance on the Directive given in the British Horseracing Board
(“BHB”) and Fixtures Marketing cases, is seems
unlikely that the Database Directive is relevant to linking.
The database right applies to ‘databases’ (broadly defined) that meet certain criteria. The right applies 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” The key 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 websites, and in which the Database Directive has been applied to deep linking. However, these cases were decided before the BHB and Fixtures Marketing rulings.
In the BHB and Fixtures Marketing rulings, the ECJ ruled that the 'substantial 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. Following the ECJ rulings, it seems unlikely that a database right would be found to have arisen in a link, or even an entire website full of links, because a website would struggle to show a significant investment in obtaining, verifying or presenting the website contents.
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.
Where a framed website contains a trade mark, a trade mark infringement action might helpful in dealing with unwanted framing.
Passing off and similar laws
See our guide to passing off for a definition of this legal action.
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 (e.g. a website that frames information about goods/services from a third party website in such a way as to appear to be that way, whilst taking the payment for goods/services sold directly) establishing passing off would be extremely difficult; would the public really think that they were using the claimant’s website when the website address and other features of the defendant’s website suggest otherwise?
Many EU countries have equivalent remedies that could apply if the scenario occurred in those jurisdictions.
Express prohibition of linking
Websites often include notices
prohibiting/limiting the ability of third parties to link to the
particular website. There are two main ways in which a website owner
could seek to rely on such a prohibition.
Firstly, the owner could argue that the prohibition was part of a contract between website owner and website user – here, the creator of the link – and failure to comply with the prohibition was a breach of contract. They would have to demonstrate that a contract had come into existence, and the usual contract law rules would apply in determining this.
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 website 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 website owners have sought to rely on either argument.
Industry-specific regulation and codes
Industry regulations and
codes of practice/conduct may apply in some scenarios. 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
The E-Commerce Directive (2000/31/EC)
states that in July 2003 and every 2 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 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.
The shut down of Tv-Links is a real bummer for all of us, the users. But it has brought up a real controversy about the legality of linking. Some may say that if it's made in a responsible way, it's ok. Others may argue that if made irresponsibly it encourages piracy, and makes you and accomplice of an illegal activity, making it therefore illegal itself. Almost everybody in the web links, does that makes us all outlaws ? Anyway, there will always be other sites. For instance, i found a great replacement: http://www.sidereel.com they have almost all the tv series, tons of movies and music vids... There's also Stage 6 or Daily Motion... We have plenty of alternatives, thanks god...!
Posted by: Golden Boy | 25 October 2007 at 11:16 PM