Can hyperlinks be prohibited?
by Linklaters & Alliance Information, Technology & Communications
"Here it was held that a website provider is not obliged to tolerate a competitor providing a link which leads users of the competitor's site directly to the website of the plaintiff provider."
Hyperlinks are the main components of the World Wide Web (www). These links provide a connection between the contents of individual websites. They enable the user to "surf the net", i.e. change simply and quickly from one website to the next. Although it is thus the hyperlinks which give the www its network character, the use of such links has not yet been finally clarified. When examining this question from a legal perspective, a distinction must be made between the different technical types of link.
The basic link comprises a simple connection to the homepage of another website by referring the user to the third party Internet address (also referred to as surface-linking).
Until recently it was widely held that this kind of linking was unobjectionable. The Higher Regional Court of Düsseldorf, for example, held in its "baumarkt.de" judgment of 29 June 1999, that parties setting up websites must expect corresponding links to be made to their websites and thus are deemed to give their implied consent to such links.
The Regional Court of Hamburg took completely the opposite view in a recent decision on similar facts under competition law, in accordance with Section. 1 of the German Act against Unfair Competition (UWG). Here it was held that a website provider is not obliged to tolerate a competitor providing a link which leads users of the competitor's site directly to the website of the plaintiff provider.
This decision of the Regional Court of Hamburg appears dubious. In the absence of particular circumstances establishing the anti-competitive nature of a link there would not appear to be legal objections to a "simple" link if the objection is merely that the parties involved are competitors. However, the decision does serve to show the extensive range of possible interpretations and the uncertainty of the courts in trying to slot these new legal issues into the existing legal framework.
In contrast to the simple hyperlink, a "deep link", rather than merely connecting the user to the homepage of a third party website, leads straight "into the depths" of the third party site. This involves the user changing Internet addresses and the Internet user is or could be aware that he has changed sites.
So far the German courts have not expressly considered deep links. However, there is some support for the argument that deep links are actionable under Sections 1, 3 UWG.
First, the direct link can give Internet users the impression that the information belongs to the website containing the deep-link.
Secondly, a provider can cause damage to the third party provider - often a competitor - as this third party's Internet offers may, as a result of the link, be less commonly frequented. The frequency with which a website is hit is a criterion for judging the advertising effect of an Internet offer and thus the amount of advertising fees to be charged.
Framing also involves a link to third party content, with the difference that the Internet user will not necessarily recognise that this comprises third party contents, as the contents appear on the initial website within a separate "frame".
Framing does not involve a change in Internet address; the Internet user thus has the impression that he is still on the original website.
The Higher Regional Court of Celle decided in May 1999 that the use of third party information is unfair from a competition law perspective.
Framing involves a risk that Internet users will not directly access this provider's website as they can obtain same or additional information on the website of the first provider by way of framing.
Finally, there are doubts as to whether framing is compatible with copyright issues if the contents linked by the framing enjoy copyright protection. In such circumstances the Regional Court of Hamburg, in a judgment of July 2000 gave a remedy. Although a party providing a website must expect links to be made to its website, so that in principle it is deemed to give its implicit consent, this does not apply if activating the link does not cause the user to completely change to the third party website, with the result that the user could believe the offers provided on the linked website are offers of the party providing the framed link. In such cases one cannot assume that the owner of the intellectual property right in the second site has given its implicit consent to the duplication of its offers, in the form of a temporary storage of the website in the main memory of the user's PC.
A website operator wishing to avoid liability should obtain the consent of the operator concerned before providing a link to the other website, especially as more and more website operators are specifically refusing the activation of links without their consent.
(This article was supplied courtesy of Linklaters & Alliance Information, Technology & Communications Issue 11, May 2001)
June 2001 contents
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