United States: Deep Linking To Newspaper Articles Held Unlawful in Denmark

Originally published on July 15, 2002

In a case brought by the Danish Newspaper Publishers’ Association (DNPA) against Newsbooster, a Danish online news aggregation service, a Danish court ruled that "deep linking" is unlawful. Deep links are links to any page on a Web site other than its front door. The DNPA asserted that Newsbooster violates its copyright and allows users to bypass its advertisements. The July 5, 2002 decision by Copenhagen’s lower bailiff’s court prevents Newsbooster from deep linking to the Association’s 28 sites. Newsbooster had argued that it is simply operating like a search engine and said it plans to appeal the court decision.

In accordance with the ruling, Newsbooster removed its links to the DNPA members’ newspaper sites, although it still collects articles from thousands of newspapers around the world. "It would have been difficult for newspapers to do business if the bailiff's court had reached the opposite result," said DNPA spokesman Ebbe Dal.

Several U.S. news sites, including National Public Radio (NPR) and The Dallas Morning News have experimented with adoption of their own prohibitions on deep linking through policies that ban others from linking to their back pages without permission. Both have since rescinded these policies under criticism and instituted new policies. Jenny Lawhorn, a spokeswoman for NPR, said that under its new guidelines "99.9 percent of the linking that goes on we're acknowledging is OK." However, Lawhorn said that NPR still believes that there can be "inappropriate links" to its site and "if our legal department found an incident of linking that was inappropriate to the point of being harmful," NPR would ask them to remove the links. Examples of "inappropriate" links include "certain kinds of commercial linking," she said. A further example she gave was "if someone sets up a business to link to us and profit from that," for example, if someone sets up an online "radio station" whose main content was NPR's programs.

Why This Matters: While the Danish decision does not effect the legality of linking in the U.S., it sets a precedent in Europe and may give U.S. newspapers and courts a reason to examine the issue closer. While deep linking is more controversial in Europe than in the U.S., the risks of doing so in the U.S. should not be ignored.

This article originally appeared in ADLAW By Request, a publication of Hall Dickler Kent Goldstein & Wood LLP.