Head of Press and Publicity at Serpentine Gallery
04 November 2002 16:44pm
What is the current legal position on organisations establishing links to other organisations' sites?
CEO at Econsultancy
04 November 2002 18:17pm
The feature by Fiona Harvey below may help. It has come from a database but I do have the editor's permission to reproduce it here along with a nice shallow link to http://www.newmediazero.com - you'll see what I mean if you read the feature...
New Media Age, 24 October 2002
Hidden depths, Fiona Harvey
Never read a Danish newspaper? That would put you in common with the majority of Internet users. Few people have even heard of the Danske Dagblades Forening. Yet the efforts of this group of Danish newspapers to protect what they see as their copyright have thrown Internet publishing into turmoil. If recent decisions from several European courts are allowed to stand, it could become effectively impossible to link to another site without its express permission for each link, on pain of legal action.
Copyright and linking have long been vexed issues on the Internet. Many industry veterans will recall the strange case of the two Shetland Island online newspapers in 1996, one of which was sued for providing links to the other. However, that case was settled out of court on the eve of the trial, meaning that no legal precedent defining the bounds of linking was set in the UK.
A case in the Netherlands in 2000 gave heart to supporters of the freedom to link, when it was ruled that linking was in line with the 'fair use' principle, enshrined in both UK and Dutch law, allowing articles to be copied for the purpose of reporting current events. But in two recent cases judges have ruled against the right to link, implying many forms of linking could be against European law.
Deep trouble The controversy mainly surrounds the practice of 'deep' linking, which differs from shallow linking in that it takes the user directly to a page within a site, instead of just to the home page. The Danish newspapers objected to news search engine Newsbooster, which provided deep links to their articles, and won their case. In Munich, a German court found that a similar engine, NewsClub, violated European law when it published deep links to the site of media company Mainpost. In these cases, a shallow link to the home page might have been overlooked but the deep link was ruled unacceptable.
Things become even more complicated when databases are involved. The European Directive on the legal protection of databases rules that no-one may republish information from databases held online without permission. William Hill in the UK was recently found to have illegally republished information from the British Horseracing Board's Web site.
The bad news for sites concerned about linking is that any site can be classed as a database, even when it bears little similarity to what most people would count as one. So says Kit Burden, partner in the commercial and technology group of law firm Barlow Lyde & Gilbert. "Web sites fall within the wide definition of a database for the purposes of the Copyright and Rights in Databases Regulations 1997," he explains. "As such, the owner has the right to prevent extraction or re-utilisation of the whole or a big part of the database, which would arguably be the case if there was repeated use of a deep link to a main element of the subject site." An even more contentious issue arises when payment is involved. Sites which charge for content understandably dislike the idea that others might get around their subscription fee by publishing a link directly to a paid-for page. The courts would almost certainly take a serious view of this, says Burden. "The usage terms of a subscription site would always stipulate that you have to pay a fee to get at content. If someone else gave a way to access the pages without paying a fee, they'd clearly be in breach of the usage contract. UK law would be heavily in favour of the site owner in any case like this." Instead of running that risk, sites wanting to provide a link to paid content could first ask permission, then ensure that links are presented sensitively - for instance, directing the user to the site's subscription page instead of the content page, and, in the link itself, clearly labelling the site as requiring a fee.
For many Internet users, the controversy over deep linking is merely further evidence that the courts don't understand the medium. For instance, if the Danish and German judgements were applied universally across the Web, searching would be well-nigh impossible. Engines such as Google make a business out of providing deep links, and most sites are grateful for the traffic they bring.
James MacAonghus, consultant at Aqute Consulting, sums up the feelings of many Web professionals. "Sites that resent deep linking show a pitiful lack of understanding of the Internet," he says. "They risk being stigmatised and even avoided by search engines, and forget that a key reason for users leaving sites is the number of pages they have to click through to get to what they want. Deep-linked visitors are after specifics, so to reject them is a little weird. Deep linking gets users straight to the part of your site they most want; why would you make it harder for them to find the right page?" Tim Berners-Lee, creator of the World Wide Web, also defends the freedom to link, writing on the W3C site: "There's no reason to ask before linking to another site. But by the same token, you are as responsible for what you say about people and their sites online as anywhere." In the US, deep linking seems likely to remain legal, given comments by a US judge in 2000 that hyperlinking doesn't violate US copyright law, in one high-profile case that saw Ticketmaster lose its claim of copyright violation over links from Tickets.com. However, the right to link may be challenged there again in future.
The issue has divided the European media industry. Although the test cases in question were brought by media groups alleging copyright infringement, many media firms seem to be in favour of the freedom to link.
"When a complementary site deep links, it'll send traffic to a relevant area within the destination site, increasing the chances of getting a response within the online media used," says Kwamina Crankson, digital marketing manager at NovaRising.
Paul Longhurst, managing partner of the Allmond Partnership, a new media advisory specialist, adds, "Viewers being directed to your site via a deep link are still valuable, irrespective of whether they came from the home page or other sites." Michael Aneto, account manager at media buying group BLM Media, agrees. "It doesn't make sense to me," he says. "Consumers have short attention spans. If you force them to hunt for things, they'll be off. Deep linking is a way to get traffic to your site." He thinks that if the deep linking illegal is banned, "I can see traffic between sites dropping substantially, which would harm Web businesses." Most media companies seem content to carry on linking for now, but MacAonghus suggests perhaps they should be more active in trying to save the right to link. "Media firms should be wise enough to see they benefit more with deep linking than without," he says.
It's still too early to say whether UK courts will frown on deep linking, and there's time for industry groups to lobby the EU for the right to link without being accused of theft.
But in the meantime, what's a site to do? The best advice, says Kit Burden, is to ask permission before offering a link.
Sometimes, though, this is problematic - search engines would find it impossible to get permission from all the sites they search, and it could become hard to get permission to publish breaking news before it's grown stale.
Even without permission, there are some practices best avoided. Certainly it's wise to erase links immediately if the linked-to site requests it. Also, it's best not to enrage sites by using framing, whereby users clicking on a deep link are presented with the linked page inside a frame of your site, which both hides the URL of the linked-to site and gives the appearance that the page is part of your site.
And in no circumstances should you ever attempt to link to a Danish newspaper.
Partner at White & Case LLP
05 November 2002 14:31pm
The article Ashley refers to is helpful - although I would be interested to know whether e-consultancy members agree that "any site can be classed as a database, even when it bears little similarity to what most people would count as one". I think I am happy that www.e-consultancy.com is a database – but I am not sure about very simple sites.
Although European law emanating from Brussels has as one of its aims the harmonization of the laws across all the countries of the European Union, the answer to your question is still likely to differ from country to country within Europe and will certainly differ when you consider other countries.
I am going shorten this reply by a factor of 10 and assume that only UK law applies to your site, the site you link to and to your users.
Although it has not been determined by an English court – I think that the courts would agree deep linking is an activity covered by English law.
One reason for this is the “extraction from a database” argument which is outlined in the article above but this argument is not without problems – not least where the web site is so simple it might not be considered a database or in cases where you cannot show “The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents” (http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31996L0009&model=guichett) i.e. what happens if the deep link is provided – but was never used or used very infrequently?
Another reason is basic copyright law. Section 16(2) of the Copyright, Designs and Patents Act 1988 (CDPA 1988) provides that “Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.” (http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_3.htm#mdiv16 ). I think that by providing a deep link to a site you are authorizing your readers to access/copy material from the site you link to – an act restricted by copyright.
The above analysis works for basic text links – as soon as you add logos (which may involve trademarks), frames, or substantial explanatory extracts from the other site – the position will become more complex as more law starts to apply.
Now that we think that deep linking is an activity which is covered by the law, we should examine the consequences:
(1) If you want to provide deep links and are able to get consent – then regardless of the legal analysis – once you have got the consent you can provide the deep links.
(2) If you want to provide deep links but it would require too much effort to get individual consents then you should check the terms and conditions of the site you wish to link to, to see if they expressly permit or prohibit linking: if they prohibit linking – then you know you will need to get a specific consent from them; and if they permit linking – then link away – although some sites require you to link in a certain way and sometimes using their logo.
(3) If the terms and conditions don’t mention linking – and you don’t know what their position relating to consent is then you need to consider the situation quite carefully. It is possible that there is an implied licence permitting you to link (and I think that both the structure of their site and the web technology they use are relevant for determining this). Alternatively, depending upon the subject matter of your site there may be some exceptions in the CDPA 1988 which may help you out – either way professional advice is probably required.
(4) Lastly, you should revisit the terms and conditions for your own site – and decide whether you are to permit others to deep link to you – and if so what conditions should apply.
(Disclaimer: I am a lawyer, but the above is not legal advice and you may not rely upon it or republish it without my express consent.)
06 November 2002 09:45am
Thanks for that comprehensive answer, Ashley. Glad to see that this is nice and easy in the eyes of the law, as ever.... ;)
You are certainly correct in challenging the statement "any site can be classed as a database, even when it bears little similarity to what most people would count as one". e-consultancy as you rightly say is indeed essentially a big database. However, many sites ('static html pages' / 'brochureware') are certainly not. But I take the point that it seems increasingly like splitting hairs to try and differentiate the two where web sites are concerned. Many site have parts which are database-driven and others which are not. So where and how do you draw the line?
My feeling is that this is largely a storm in a teacup. Why wouldn't you want people linking to your site, deep or shallow? Indeed, the deeper the better, as then the referred visitors are more likely to find what they're after and be more satisfied with your site. You have to ask yourself whether it is even worth rooting out those sites that links to yours which you consider undesirable. Is it worth the effort? Does it really tarnish your brand (the user clearly chose to go to the other site)? It certainly helps your search engine rankings.
Where there is an issue, I think, and where site owners need some legal redress is where they are being 'passed off' - I think that is the legalese? Aren't there laws around that too? As I understand it, it is where the user is given the impression that your site or content is more directly part of another site i.e. where the unauthorised site is 'piggy backing' and drawing value from being associated with your brand without permission. Framing, for example, gives this impression and should only be done (in my view) with the express permission of the framed site. Republishing content, or pulling images onto another site etc. without permission is definitely not on.
06 November 2002 09:48am
Thanks for this detailed and very helpful reply. Annabel
Independent at Multiplicity (www.multiplicity.info)
09 November 2002 08:35am
- What is the internet without links? Nothing. If you're not interested in links from others though, perhaps do what the Brussels' tram and metro website does: makes you promise not to link to them (shallow or deep) before you can enter the site. But whether that is useful? Especially shallow linking: don't you want to be found? If not, why be present on the internet?
- On deeplinking: so far there's not much jurisprudence on it (and if it's from a Danish court e.g. then in principle this verdict is only valid in Denmark, although similar verdicts on similar cases in different countries of course do give some indication on 'common opinion').
- How many people would need lots of jurisprudence to understand that deeplinking within frames is not OK? Would you appreciate it if others would make your webpage appear in their webpage, giving the impression that is was them who put all the energy in the content of the linked page? Well, don't do unto others what you don't want done unto you. Laws and jurisprudence are in some cases I'd state a way to resolve unappropriate behaviour, most people's morals and values should already give them a good indication of what is OK or not.
- I think it's too easy to state that only English law applies to e-consultancy.com. As it's on the internet, the site is accessible from most of the world and all English speakers can read its content. See Yahoo! case on nazi 'memorabilia' accessible to French surfers from US website.
11 November 2002 09:28am
A great help. Many thanks for all this advice.
Operations Director at Sitelynx Ltd
19 February 2003 16:29pm
This area is often at loggerheads with the nature of the Internet.
Links are an uncontrollable issue in respect of how one is described in the link and what a site links to.
Out of date content
Previous brand names
the actual wording used indeed cached content in the search engines themselves (Google)
The recommendation would be for a link policy to be issued on a site so that reference might be available and therefore ones web reputation might be controlled.
It is impossible to say that links must be avoided
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