Linking and framing on the web

Linking and framing have little to do with the art of decorating. These are modern words used pervasively in IT jargon. ‘Hyperlinking’ or its shorter version ‘linking’ is a sort of reference mechanism, which the user of a website can use to follow the reference and view the content provided by that link in another webpage. In plain words, linking provides the ability to jump from one page to another, a signature characteristic of the internet.

Links can be outright unlawful when designed to confuse viewers- Josette Grech

‘Framing’ refers to the display of one or more web pages within the same browser window and involves the use of hyperlinking. Both creation and use of hyperlinks are relatively simple tasks that can be accomplished unilaterally by the author or reader of a webpage.

Although apparently harmless, these two different, but related, web technologies can give rise to liability. Links can be outright unlawful when designed to confuse viewers, evade the law, or promote illegal conduct by others. Most linking to content willingly placed on the internet is seemingly fair and lawful, until intellectual property rights are affected.

The laws of intellectual property provide the backdrop for most hyperlink disputes.

Copyright issues concern, in large part, the creation or facilitation of access by the public to proprietary media content. Both technologies can have the effect of distributing and creating routes for distribution of content, at times without the consent of the proprietor of the webpage to which the link refers.

Debate on the subject has led to a worldwide body of opinions on the continent and further afield. Still the law is hardly settled and it remains unclear whether linking and framing constitute a communication to the public and the making of an unauthorised copy.

The US Supreme Court considered that a hyperlink, by itself, cannot be seen as a publication of the content to which it refers as it constitutes merely a reference, which is fundamentally different from other acts of publication.

By contrast, courts in Europe have taken inconsistent positions on the practice of linking. Part of the reason is that in the European Union, linking is viewed as potentially giving rise to a claim for database right infringement pursuant to the EU Database Directive. Database ‘rights’ represent a new, discrete kind of intellectual property right that exists only when there has been investment in obtaining, verifying, or presenting the contents of a database.

Many European courts have considered the new database protection right in the internet context, with inconsistent results.

A Danish court found linking legally permissible, a French and a German Court in two separate cases granted injunctive relief against a deep linker, while another German court ruled that linking is not unlawful.

Adding to the confusion and the inconsistency is a Danish case which ordered an internet news service to stop its practice of “deep linking” to other sites and a Dutch court decided that publishing hyperlinks to copyrighted content is, under certain circumstances, a copyright infringement. The latter case arose after a website published an article about leaked pictures of a television presenter. The article contained a hyperlink to these pictures.

Playboy, which shot these pictures, sued the website for copyright infringement. The Court ruled that there was an infringement as there was a new audience for the pictures after the website intervened to place the hyperlink on its site, attracting interested visitors to its website.

At this point, it is still unclear whether linking is lawful. In the meantime, many European sites continue their practice of linking without receiving prior permission. Given the uncertainty created by the differing positions taken by European courts with respect to the issue of linking, recently a Swedish court made a request for a preliminary ruling from the Court of Justice of the European Union on the infringement of exclusive rights to make copyright protected work publicly available by a third party subscription search engine.

The CJEU has been called upon to decide whether linking constitutes communication to the public, both when the linked website is freely accessible and when the linked website imposes restrictions on access such as terms and conditions or paywalls requiring subscription. This will certainly be a much awaited ruling. Until now linking and framing are not deemed illegal. Nor is it clear that either should be.

jgrech@demarcoassociates.com

Josette Grech is an associate with Guido de Marco & Associates and heads its European law division.