01 Apr 2014

To link, or not to link? The legal risks of linking

by James Neil, Thomas Middleton

When linking, but particularly when engaging in framing, parties should be careful to ensure that the source of the linked material is made clear to the internet user.

Most regular users of the internet engage in linking, in one way or another, on a regular basis. This could be by posting on Facebook walls, blogs or in “tweets”.

In most cases, linking is unlikely to present any legal difficulties. However, that will not always be the case, and there are instances where linking can lead to liability for the person providing the link and/or the operator of the website on which the link is made available.

We discuss below the current state of the law on linking. In doing so, we consider authorities from Australia and beyond, and examine some ways in which parties can seek to reduce the risks of engaging in this practice.

What is linking?

Linking is “standard internet technology” that enables users to easily travel between websites or from one online medium (for example, email, Facebook, Twitter or a blog) to another, and to access information.[1] Linking can take various forms, including:[2]

  • surface linking, where the user clicks on a link and is taken to the homepage of the linked website;
  • deep linking, where the user clicks on a link and is transferred directly to a specific interior or sub-page of the linked website, bypassing the homepage; and
  • framing, where content is taken from the linked page and displayed within the host page or in a pop up box.

When might linking create legal risk?

In most cases, the owner of a website is unlikely to take issue with a third party providing a link to that website. That is because website owners generally desire for larger numbers of internet users to visit their website, whether to generate advertising revenue or otherwise. The provision of a link to their website is therefore, in most cases, tantamount to a “free kick”. However, linking is most likely to give rise to legal risk where it causes another party to suffer (at least perceived) financial loss. In general terms, this is most likely to occur in two scenarios:

1. Where the owner of the linked website considers that it is suffering, or will suffer, a loss in advertising revenue because the linking prevents certain advertising space it sells to be seen by internet users (Direct Risk).

2. Where a party other than the owner of the linked website takes issue with the content of, or service being provided by, the linked website and seeks to impose liability not on (or only on) the operator of the linked website, but on the party providing the link and/or the operator of the website on which the link is made available (Indirect Risk).

Authorities which have assessed the conduct of parties in each of these scenarios will be considered below.

Relevant authorities

Direct Risk

There are no known Australian authorities which have considered the legality of linking from a Direct Risk perspective.

Although Australian lawyers must always tread carefully when considering the decisions of courts (particularly of a lower level) in other jurisdictions, some helpful guidance may be drawn from the cases addressed below in the absence of Australian authority.

Shetland Times case

The starting point in this analysis is the UK case of The Shetland Times Ltd v Wills (Shetland Times case).[3] There, The Shetland Times published a newspaper and, like most modern day newspaper publishers, operated a website containing online editions of its hard copy newspaper articles. Mr Wills operated an internet news and reporting service called The Shetland News. As part of this service, Wills operated a website which displayed the text of the headlines of certain articles from The Shetland Times, along with links to the online version of those articles on The Shetland Times’ website. The links were deep links to the relevant article that bypassed The Shetland Times’ homepage (and the advertising dis- played on that homepage).Wills’ intention was to attract visitors to The Shetland News website and derive a profit by selling advertising space on that website.

The Shetland Times applied for interim relief, seeking to restrain Wills from continuing to engage in this conduct, contending that it constituted an infringement of its copyright in its article headlines (both as literary works and as “cable programmes” within the meaning of the UK copyright legislation under consideration).

The court granted the injunction on an interim basis, preventing Wills from engaging in the conduct of which was complained. Unhappily for those interested in this area of the law, the judgment granting interim relief is scant on detail, and the case settled before final trial. It is interesting to note, however, that the terms of settle- ment allowed The Shetland News to continue operating its website and to continue providing links to articles on The Shetland Times’ website, yet only on the condition that:

  • the words “A Shetland Times Story” be included under each linked headline; andf
  • next to each linked headline, there would appear the logo of The Shetland Times which would itself be a link to the homepage of The Shetland Times.[4]

In this way, the advertising that The Shetland Times had sold on its homepage would be seen by more internet users and thereby allow it to generate greater advertising revenue on a “click-through” basis.

Tickets.com case

As readers will be aware, Ticketmaster operates principally as a broker of tickets for events, including by operating a website through which consumers can purchase tickets. Ticketmaster not only derives revenue by charging a commission on ticket sales, but also by selling advertising space on its websites, the most valuable of which is on its homepage.

Tickets.com provided a somewhat different service to Ticketmaster. While Tickets.com sold some tickets, the principal function of the Tickets.com website was to provide general information about how, and from where, tickets to events could be purchased. Where Tickets.com was not able to sell the relevant tickets itself (due to exclusivity arrangements), it would often provide the following statement:

"These tickets are sold by another ticketing company. Although we can’t sell them to you, the link above will take you directly to the other company’s web site where you can purchase them."[5]

In Ticketmaster Corporation v Tickets.com Inc.[6] (Tickets.com case), Ticketmaster claimed that Tickets.com was (among other things) breaching a contract with it (in the form of its website terms and conditions), engaging in (the approximate US equivalent of) passing off, and infringing its copyright, by providing deep links to certain “event pages” on the Ticketmaster website in the manner described above. It sought a preliminary injunction to restrain this conduct. Ticketmaster’s primary economic rationale for bringing the action seemed to be that, like The Shetland News, Tickets.com’s conduct was impacting upon the number of users who were exposed to the advertising on the Ticketmaster website homepage, thereby reducing the revenue that Ticketmaster derived from selling advertising space on that page.

In relation to the breach of contract claim, Ticketmaster sought to rely on terms and conditions displayed on Ticketmaster’s website. Those terms provided that any- one going beyond the homepage was not permitted to use the information provided there for commercial purposes, and would not deep link to other pages of the site. Although an analysis of the “shrink-wrap” contract cases is beyond the scope of this article, it is instructive to note that, in these circumstances, the court expressed doubt as to whether a contract had in fact been created between Ticketmaster and Tickets.com as a result of these terms and conditions. In doing so, the court observed that, in order to view the relevant terms and conditions, a visitor to Ticketmaster’s website needed to scroll down to the bottom of the page to find and read them. Most users would be unlikely to do this, and therefore the court noted: “It cannot be said that merely putting the terms and conditions in this fashion necessarily creates a contract with any one using the web site”.[7]

In relation to the approximate US equivalent of passing off, Ticketmaster’s primary complaint was that Tickets.com’s conduct "falsely suggested or implied an association with Ticketmaster".[8] Although the court did not finally determine this issue, it did note that deep linking by itself, without confusion as to source, will not necessarily create liability in this sphere.[9]

Similarly, as to copyright infringement, the court noted that the practice of linking, or the provision of a link to another website did not involve infringement of another’s copyright under US law as no copying was involved. The court said that the link transferred the user to the genuine web page of the original author, much like a library card index would also reference particular items.[10]

Interestingly, however, the court later found[11] there may have been an infringement of copyright in another form, because factual information about events (ie. place, time, cost of tickets) was electronically extracted from the Ticketmaster website by Tickets.com and then reproduced on the Tickets.com site. However, to the extent that there was prima facie infringement in this way, the court found that the US doctrine of “fair use” would prevent Ticketmaster from obtaining relief. Subsequent US authorities have also found that the fair use doctrine may be available in the linking context. [12] doctrine does not form a part of Australian copy- right law and it is not known whether, or if so, when, the Australian Law Reform Commission’s recommendation for such a concept to be introduced in Australia will be implemented.[13]

Washington Post case

In Washington Post v Totalnews,[14] practice of framing was expressly considered. There, TotalNews operated a website which was essentially a portal by which internet users could access online news from established news providers including CNN, CBS and the Washington Post. These established news providers commenced proceedings against TotalNews alleging (among other things) that TotalNews was engaging in the approximate US equivalent of passing off. In doing so, the plaintiffs alleged that TotalNews’ conduct was calculated to cause their websites to appear not in the form that they had intended, but in an altered form designed by TotalNews for its own financial benefit. The plaintiffs’ further described the conduct as “masking” part of their own website with TotalNews’ logo, advertisements and URL through framing the link to their websites by TotalNews.

Again, this case settled before the plaintiffs’ complaint could be assessed. However, the apparent terms of settlement are instructive.[15]Under those terms, TotalNews would be permitted to provide links to the plaintiffs’ websites but on condition that:

  • the links would consist only of the names of the linked sites in plain text; and
  • in doing so, TotalNews would not use any of the plaintiffs’ proprietary logos or other distinctive graphics, video or audio material, or otherwise link in any manner reasonably likely to imply affiliation with, endorsement or sponsorship by any plaintiff, or cause confusion, mistake or deception.

Svensson case

Svensson v Retriever Sverige (Svensson case) is the most recent linking case from the European Court of Justice (ECJ).[16] Svensson and the other appellants wrote for a newspaper in Sweden called Göteborgs-Posten. The paper posted news articles on its website that were freely available to the public.

Retriever Sverige operated a website that provided hyperlinks to the articles posted on Göteborgs-Posten. Retriever Sverige did not seek permission to link the articles from the journalists or the newspaper.

On referral from the Swedish Court of Appeal, the ECJ was asked to determine whether linking was an “act of communication to the public” under relevant EU copyright laws. It found that the provision of links to protected works was such an act of communication to the public, but that the communication was not directed at a “new public” which could not already access Göteborgs-Posten.

It is important to note that the court would have adopted a different approach if the hyperlink avoided restrictions (like limiting access only to subscribers) placed on the site on which the protected work appeared. This would create a “new public” as non-subscribers would be able to view the articles. In those circumstances, the permission of the copyright owner would be required, as a new audience would be able to retrieve the protected works without the original author’s permission.

Indirect Risk

Contrary to the Direct Risk scenario, one high-profile Australian case has directly considered the legality of linking in the Indirect Risk scenario — Cooper v Universal Music Australia Pty Ltd (Cooper case).[17] Although this article does not purport to provide an in-depth analysis of this case or copyright infringement by way of authorisation, its discussion of the practice of linking is certainly worthy of mention and may be applicable beyond the copyright context.

In the Cooper case, Cooper operated a website known as “MP3s4FREE” (the Site), which enabled users to create and display links to other sites from which music files could (generally without the authority of the copyright owners) be downloaded for free. These links were said to “enable the user to directly access the files on, and activate the downloading from, the remote websites”.[18] Each page of the Site included a reference to the operator’s “‘Privacy Policy’, ‘Terms and Conditions’ and ‘Disclaimer’”.[19] These terms purported to state that the operator was “not responsible” for content on the Site or remote sites, did not “necessarily” have control over any links and that no music files were stored on its servers.[20]

The Full Federal Court held that, by engaging in this conduct, Cooper breached section 101(1) of the Copyright Act 1968 (Cth) because he authorised the copyright infringement of others.[21] Cooper, it was found, had sufficient “power to prevent” copyright infringement: he not only had the ability to remove links (or not allow them at all),[22] but he had constructed the website in a manner that suggested he had intended to facilitate copyright infringing downloads by way of the links.[23] Advertisements on the site provided Cooper with a “commercial interest in attracting users[24] which meant that he had a relationship with the direct infringers. Further, because he had not attempted to establish whether the MP3s at the linked sites were copyright infringements, he had not taken any reasonable steps to prevent infringement.[25]

How to reduce the risks

Although most of the cases addressed above apply the law of other jurisdictions, they provide useful guidance as to the risks which parties take when they engage in linking which causes another party to suffer (at least perceived) financial detriment. Indeed, from these cases, it is possible to identify some general themes and “lessons learned”:

1. It seems clear that surface linking is relatively low risk from a Direct Risk perspective, because the owner of the linked site will not be likely to suffer a loss in advertising revenue. In fact, if anything, they will likely experience a financial benefit as a result of more users visiting their homepage and viewing the advertising on that page. However, where the operator of a website derives substantial revenue from selling advertising space on its homepage (as was the case in the Shetland Times case and Tickets.com case), providing deep links into specific internal pages on their website, thereby bypassing the homepage, may well draw the website operator’s ire. In such circumstances, operators of blogs, news aggregator sites, Facebook pages and tweeter feeds should think twice before proceeding.

2. Notwithstanding the preliminary finding in the Tickets.com case concerning the breach of contract claim, serious bloggers and news aggregators should beware of website terms and conditions, or policies, which are properly brought to their attention and which prohibit or restrict linking to that website. This will be particularly important where a party intends to provide links to the website for commercial gain.

3. When linking, but particularly when engaging in framing, parties should be careful to ensure that the source of the linked material is made clear to the internet user. As set out above, in the international cases in the Direct Risk scenario, the plaintiffs were generally content to settle the proceeding so long as the source of the linked material was properly attributed. In an Australian context, it is easy to see how a party could engage in passing off, or contravene corresponding provisions of the Australian Consumer Law prohibiting false or misleading representations regarding sponsorship, approval or affiliation, [26] if reasonable consumers would be misled into believing that certain framed content was created by, or is affiliated with, the party providing the link. In this regard, contrary to the practice adopted by TotalNews, framing should not be configured so as to conceal substantial material from the linked page (whether that be advertising or logos and other indicia of the website publisher).

4. Some framing is permitted, so long as the link complies with certain terms and conditions. For example, YouTube allows an embeddable player to display clips on third party websites, provided that the functionality of the player is not tampered with and any links back to the YouTube website are maintained.

5. Although providing a link to another site alone (whether it be a surface link or deep link) is unlikely to constitute copyright infringement under Australian law, where that link is displayed in conjunction with material that is copied from the linked site (as was considered in the Tickets.com case), a material risk of copyright infringement arises.

6. In the Indirect Risk scenario, website operators need to beware of the risks of being found liable where users of their site post links to other sites which may cause financial detriment to a third party. To reduce the risks, website operators which permit links to be displayed on their site should ensure that they do not encourage links to pages which may contravene either the civil or criminal law. They should also seek to monitor the nature of linked material, and properly make known to users of the site appropriate terms and conditions which prohibit inappropriate linking and illegal behaviour in general. Any complaints about links on the site should also be swiftly dealt with. Although linking is part of most internet users’ everyday online experience, those who engage in certain linking practices without due care may well find them- selves in hot water. In particular, where money is concerned, parties which fail to heed the lessons espoused above may well open their mail to find a letter of demand from a disgruntled website operator or, worse, a statement of claim.

 

This article was first published in the Internet Law Bulletin, April 2014

 


[1] Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1 at 8; 65 IPR 409; [2005] FCA 972 at [18]. Back to article

[2] See further Australian Copyright Council. Copyright & Online Technologies (Australian Copyright Council, 2013) 15–16 and Tanushree Sangal, “IP issues in linking, framing and keyword linked advertising” (2010) 16(3) Computer and Telecommunications Law Review 64, 64. Back to article

[3] Shetland Times Ltd v Wills (1996) 37 IPR 71; [1997] SLT 669; [1997] EMLR 277; [1997] FSR 604. Back to article

[4] See further Morris Averill, “Competition on the Internet and the World Wide Web—The Schoolmasters’ of Gloucester case in the 21st century” (2004) 11 Competition & Consumer Law Journal 1, 7. Back to article

[5] Ticketmaster Corporation v Tickets.com Inc (C.D. CAL., 27 March 2000) at 3.Back to article

[6] Above, n 5. Back to article

[7] Above, n 5, at 5.Back to article

[8] Above, n 5, at 5. Back to article

[9] Above, n 5, at 5.Back to article

[10] Above, n 5, at 4. Back to article

[11] See Ticketmaster Corporation v Tickets.com Inc (C.D. CAL., 10 August 2000) at 3. Back to article

[12] See Kelly v Arriba Soft Corp 336 F.3d 811 (9th Cir. 2003); Perfect 10, Inc. v Amazon.com, Inc. 487 F.3d 701 (9th Cir. 2007). Back to article

[13] Australian Law Reform Commission, Copyright and the Digi-tal Economy, Discussion Paper 79 (2013). Back to article

[14] Washington Post v Totalnews No 97 Civ. 1190 (PKL) (SDNY 28 February 1997). Back to article

[15] See www.docs.law.gwu.edu (accessed 8 January 2014). Back to article

[16] Svensson v Retriever Sverige AB (C-466/12) [2014]. Back to article

[17] Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380; 237 ALR 714; [2006] FCAFC 187. Back to article

[18] Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1 at 20; (2005) 65 IPR 409; [2005] FCA 972 at [84]. Back to article

[19] Above, n 18, at 11 [30]. Back to article

[20] Above, n 17, at 398 [100].Back to article

[21] Above, n 17.Back to article

[22] Above, n 17, at 411 [148]. Back to article

[23] Above, n 17, at 412 [149].Back to article

[24] Above, n 17, at 390 [148]. Back to article

[25] Above, n 17, at 412 [151]. Back to article

[26] See ss 18(1), 29(1)(g) and (h).Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.