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Reasons to think before you link

By RICHARD POYNDER

24th June 2002

The web's most fundamental building block is the hyperlink. Created to allow the sharing of information, it enables surfers to move instantaneously from any web-based resource to another, regardless of their respective physical locations.

But as the web has become an increasingly important channel for commercial activity, so the principle of linking has come into conflict with other considerations - and recent court cases suggest that anyone linking to third-party sites without due caution could fall foul of the law.

Legal action is most likely where a link goes directly to the content concerned, rather than to the destination site's homepage. Known as "deep linking", this can lead to accusations of copyright infringement, particularly where it allows users to bypass revenue-producing advertising - normally located on the home page - or involves the copying of headlines or summaries from the destination site.

Until recently it was widely assumed that courts would be reluctant to outlaw linking. After all, says Matthew Warren, a partner at Bristows, the London-based intellectual property law firm, "by putting up a website that is freely accessible to everyone, and which can be freely linked to, it could be argued that you are giving people an implied licence to link".

A US case two years ago appeared to support this view. When Ticketmaster, an online ticket vendor, unsuccessfully sued rival Tickets.com for deep linking to its site, the court held that hyperlinking itself did not violate US copyright laws. And while the only UK case to tackle copyright in linking saw the Shetland Times win a temporary injunction preventing a rival news site from linking to its stories and copying its headlines, settlement was reached before a full hearing.

Recent cases in Europe and the US, however, have led some to conclude that the law has begun to look more favourably on those wishing to bar unwelcome links.

The change in Europe comes in the wake of the European Union's database directive. Implemented in the UK in 1998 as the database right, this introduced a new sui generis right in databases that offers broader protection than copyright. Last year, for instance, Stepstone, the German online recruiting company, prevented OFiR, the Danish media company, from deep-linking to job advertisements on its site, with the court holding that OFiR had infringed Stepstone's database rights.

To be successful, such claims need to demonstrate that in creating the link the offender is engaged in "systematic extraction or reutilisation of the contents of the database and that the owner has made a substantial investment in creating the database", says Peter Stevens, information technology partner at Manches Solicitors. Thus when PCM, the Dutch newspaper conglomerate, attempted to stop Kranten.com from deep-linking to headlines on its website, the court held that the newspapers had put insufficient effort into composing the collection of headlines concerned for them to constitute a database. Nevertheless, Mr Stevens believes the new law will prove a fruitful basis for complaint in the future, "since the database right will cover a lot of websites".

A US case earlier this year - in which Ditto.com, the image search engine, was held to have infringed the exclusive right of Leslie Kelly, a Californian photographer, to display his copyrighted works publicly - could signal an even greater change in legal thinking. Ditto.com displays thumbnail-sized pictures of web-based images matching users' search terms. By clicking on the thumbnail, searchers can then view full-sized pictures. While the court held that the display of the thumbnail images was acceptable under the "fair dealing" principle (which also permits photocopying of short extracts from printed material), it concluded that Ditto.com was not able to display the larger images without the creators' permission.

"This case changes the debate quite a bit," says Judy Jennison, a partner in US law firm Perkins Coie, currently acting for Ditto.com. "Since the Tickets.com case it was thought that linking presented a legal problem only if there was something false in the way the material was presented - but that the mere display of it was never a copyright problem." In March, Ditto.com requested a rehearing, since when the case has attracted widespread attention from online advocacy groups.

Opinion is divided on whether the Ditto.com case would influence a UK court. Nevertheless, those wanting to prevent unwelcome links are increasingly turning to the law. When website operator Countess Joulebine placed a link from her home page to some confidential information about Sir Elton John last year, a UK court ordered her to remove the link and pay damages for breach of confidence.

In April, the German railway operator Deutsche Bahn took legal action against search engine Google for providing links to a website containing instructions on how to sabotage railway systems. In a related action, it also sued the Dutch independent media organisation Indymedia NL for linking to sites that mirrored the offending material - and last Thursday a Dutch court ordered the website to remove the links immediately, on penalty of being fined Euros 5,000 a day if it failed to comply.

The type of linking most likely to attract litigation today, however, is "framing". Here the linking site places the linked page within its own banner or logo. "Since you are (in effect) using a copy of their material and making it look like your own, framing is very hard to justify and so highly likely to attract claims of passing off," says Vanessa Barnett, an IT lawyer at Berwin Leighton Paisner.

When, for instance, UK publisher Haymarket discovered that the oil company Burmah Castrol was framing content from its car magazine sites, it began legal action for passing off. The matter was settled out of court, says Bill Murray, managing director of Haymarket Interactive, and "Castrol wrote a public letter saying they accepted that they should not have framed our site without permission and wouldn't be doing it again".

Given the potential liability issues, lawyers are advising website operators to seek permission before linking. "Where you do link to an external site, make it clear that the site is owned by the third party," says Mr Warren. "This reduces the risk of being accused of passing off and distances you from anything potentially problematic on the sites you link to." And if you want to restrict linking to your own site, say so in your terms and conditions, Ms Barnett suggests. "While the enforceability of website terms and conditions has never been tested in the courts, it says to the world: 'If you do this, we are going to be annoyed.' "

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