Hyperlinks are an integral part of the World Wide Web. They allow users to navigate the internet using just a mouse or to source files located on remote servers. The use of hyperlinks is so prevalent few people stop to consider the legal implications of how they create or use them.
Types of hyperlinks
The most controversial types of hyperlinks are:
- deep links
- inline image links.
Deep links are hyperlinks to pages which are not the website's homepage. For example, a hyperlink to http://www.middletons.com/publications/default.asp would be classified as a deep link because it bypasses Middletons' homepage.
Framing allows a web page to be divided into multiple sections or frames. The use of frames can be contentious where they display files located on remote websites without the viewer knowing that this is occurring.
Inline image links
Inline image links or 'IMG links' are used to display images and graphics contained on a third party's server, within your own webpage.
Factors to consider
Website operators wanting to post hyperlinks to third party websites should consider the following factors.
Hyperlinking netiquette (customs or behaviours expected on the internet) does not usually require the website owner's prior consent. In most instances hyperlinks are encouraged as a means of free publicity and increasing web traffic.
However, before using hyperlinks you should first check:
- whether the website has a hyperlinking policy within its terms and conditions
- if the terms and conditions allow your proposed method of hyperlinking.
Hyperlinking policies often allow standard hyperlinks but prohibit deep links. This is because homepages will frequently contain important notifications, advertising and visitor statistics from which the website's owner derives revenue. In Shetland Times Ltd v Wills 1997, while the case was ultimately settled out of court, the Scottish court granted an interim injunction recognising the detriment that could be caused by deep linking. Further, in the US case of eBay Inc v Bidder's Edge Inc, spider software that scanned the eBay system and created deep links to specific sale items was found to cause damage to eBay. The damage was caused by reducing the value of eBay's service and consuming bandwidth and server capacity.
The main intellectual property (IP) considerations in this field relate to copyright and trade mark law. A simple hypertext reference will not usually cause any infringement of a third party's IP. Where you may find trouble is when:
- inline links are used, or
- the content of the referred website is an unauthorised use of another's copyright works or a registered trade mark.
Where inline links use images in a manner that was not intended or authorised by the copyright owner, there may be a claim for copyright infringement. Further, if that image is a registered trade mark (ie a company logo) the exclusive rights in the mark may be infringed.
In Universal Music Australia Pty Ltd v Cooper, the operators of the website mp3s4free.net maintained hyperlinks to remote websites containing pirated music. By facilitating the downloading of mp3 files, the operators of the website were consciously aiding users to infringe the copyright owned by the record companies. This resulted in a finding of authorisation infringement against them even though the website operators didn't copy anything themselves.
Passing off and similar statutory claims
Passing off is an action under tort law against a person pretending to supply the goods of another. Essentially, one party deceptively benefits from another's goodwill and reputation. Discussion on passing off claims from hyperlinking typically arises in the context of framing, but could be made out from any form of hyperlink that is likely to confuse users. Where frames source their content from remote websites, this can create the impression that they belong to the website operator, confusing the viewer as to their origin.
These same facts raise issues under the Trade Practices Act or the various State Fair Trading Acts for:
- misleading and deceptive conduct, or
- the making of false representations of sponsorship or approval.
Inline image links which display company logos alluding to a non-existent alliance or affiliation between the two sites may also constitute misleading and deceptive conduct or a false representation of sponsorship.
From a practical perspective, it is important to consider the reputation of the websites that you hyperlink to. No matter which method of hyperlinking you use, it is rare that you will have any control over the content of those sites or have the time to verify its accuracy. This can cause legal implications (such as where a remote site contains defamatory or illegal material) and commercial concerns where third party content is of such a poor quality that it damages your own reputation and goodwill.
If you are a website operator, we recommend you take the following step to minimise your risks of a hyperlinking dispute:
- determine whether the websites you link have hyperlinking policies. If they do, comply with the terms
- if you operate a website without a hyperlinking policy it would be advisable to have one prepared in case another website links inappropriately to yours
- if a website does not have a hyperlinking policy, always link to the homepage
- do not create hyperlinks to content that you suspect is an infringement of another party's intellectual property rights
- it is best to only use framing, deep links or inline links where these are expressly permitted. Ensure that visitors to your website are aware that you are not the owner of that content and that there is no affiliation between yourself and the linked website
- only link to sites that are reputable and try to monitor their content and their hyperlinking policies as these may change.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.