Laws governing the Net remain a grey area, even for such issues as
deep linking, while discrimination laws also apply to the Web,
writes Elsa Booth
The legality of the practice known as deep linking - linking to
another company's website while bypassing its homepage - has never
been certain. Yet the questions posed by this dubious practice are
crucial: a homepage is central to a website's structure and it also
contains vital information such as copyright notices, terms and
conditions and disclaimers, not to mention logos and banner ads. If
users are skirting around banners, then this is likely to have an
impact on advertising revenues, not to mention the knock-on effect
of diluting brand and, possibly, profitability.
No surprise, then, that a German court has granted an injunction
to the UK recruitment company, StepStone, preventing a competitor
from deep linking to the StepStone site for those very reasons.
Along similar lines, the UK publisher, Haymarket, has just launched
an action in the UK against Burmah Castrol, arguing that the use of
a Castrol branded border to frame Haymarket Web pages amounts to
copyright infringement and passing off, since the presentation of
the material suggests that Castrol is associated with
Haymarket.
Haymarket's legal action concerns links on Castrol's website
which 'frame' content from two of the publisher's sites,
whatcar.com and autosport.com,
within a Castrol-branded border. Haymarket alleges that Castrol has
failed to seek permission to use its website material.
The publisher is claiming breach of copyright, as well as
alleging "passing off" on the basis that the framing will suggest
the Castrol sites are associated with it. We await the outcome to
this action with interest.
Some online users argue that there should be few legal
constraints on links between sites if the Internet's potential is
to be fully exploited. Only last year US courts dismissed a case
brought by Ticketmaster against Tickets.com over
deep linking. But the terms and conditions of Ticketmaster's site
did not preclude deep linking - a ban that many sites' terms have
now included.
Meanwhile, the first French decision on deep linking, involving
a company called Cadres Online, suggests that while surface linking
is impliedly authorised, deep linking is not. According to the
Judge, permission should always be obtained for deep linking. The
best solution of all, of course, is to put in place a formal
linking agreement that covers all eventualities, including
answering the following:
- Who will set up and maintain the link?
- How long should it be displayed?
- Where should it be located: in the body of the text or at the
end of a page? Is there a prohibition against deep linking?
- If the link involves a logo/ trademark, does the trademark
holder grant a licence?
- Should the link flow in two directions? If so, who owns the
data on the customer?
- Should warranties be put in place in respect to the legality of
the content of the website to which the link leads?
- What are the grounds for cutting the link?
Discrimination laws applied to the Web
As well as charting current legal developments, EBR also tries
to predict possible legal pitfalls that might lie ahead. One such
area is the application of discrimination laws to websites.
At the end of 1999, the National Federation of the Blind brought
an action against AOL claiming its software was not compatible with
the screen-access software used by the blind. Then, last year in
Sydney, the official Olympic website was found to be in breach of
discrimination laws since it was inaccessible to the visually
impaired. Finally, last month in the US, a federal agency ordered
that all Government websites should be made accessible to disabled
people. Those websites that do not meet this standard, have to be
redesigned within six months. Since this is little more than best
practice, it seems inevitable that US private commercial sites will
be next in line.
UK businesses should, therefore, be factoring this criteria into
their website design now, rather then meet substantial costs
later.
Limiting liability for Internet disruption
What happens when your online service grinds to a halt due to
Internet disruption? Are you permitted to limit your liability for
this in your general terms and conditions?
In Germany last month, two separate courts considered this issue
in relation to online banking. Although each case reached a
different conclusion, there was a point of consensus, namely that a
company is unlikely to be able to limit liability for disruption
where that disruption is due to technical or organisational
reasons. However, limiting liability for disruption caused by an
event beyond the company's control may be acceptable.
The difficult part lies in assessing what is, or is not, within
the control of a company. A national power cut isn't, but a virus
that wipes out data due to the company's inadequate security
precautions might be! It will be for the courts to determine such
matters. So, once a company has done all it can to make itself
secure, the prudent business will take out e-business insurance
from one of the firms who have begun providing cover in this
area.