Think before you link - Internet Law

Laws governing the Net remain a grey area, even for such issues as deep linking, while discrimination laws also apply to the Web,...

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, and, 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 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.

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