Hyperlinking is one of the most common methods of linking from one page to another on the Internet. A hyperlink is in the form of a bold or underlined text or sometimes in the form of an image that directly links the user from one Webpage/Website to another without undergoing a separate search process. For example, if the Webpage contains a link: www.aashitshah.com, and the user clicks on this hyperlink, the user will be directed to the Website: www.aashitshah.com.

Legal Issues

The permissibility and legality of hyperlinking is an unresolved and debatable issue. Several legal issues have arisen in relation to hyperlinking. Some of these issues include copyright infringement, trademark violation and passing off, unfair competition and defamation.

The issue of whether hyperlinking amounts to copyright infringement was first brought up in the Scottish case of The Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd. (1997). In this case, the Defendants (Dr. Wills and Zetnews) had used the headlines from the Plaintiff’s (Shetland Times) Webpage on the Shetland News Webpage and linked it to the headlines and news items on the Shetland Times Webpage. The Scottish Courts held that in such a case hyperlinking violated the plaintiff’s copyrights and was thereby forbidden.

However, in Ticketmaster Corporation et al v. Tickets.com, Inc. (2000), the US Court held that hyperlinking does not itself involve a violation of the Copyright Act as there is no deception in plain and simple hyperlinking. Though on the face of it, hyperlinking may not amount to copyright infringement, it may infringe copyrights if the copyrighted works are displayed in a different manner after hyperlinking (derivative works).

In Playboy Enterprises, Inc. v. Universal Tel-A-Talk, Inc. (1998), the Defendants used the internationally famous ‘bunny’ trademark of Playboy to create an unauthorized hyperlink to the Official Playboy Website. The US Court held that such form of hyperlinking constituted trademark infringement and dilution.

Another landmark case is that of Ticketmaster Corporation v. Microsoft Corporation (1997), where Ticketmaster filed a case against Microsoft for improperly using Ticketmaster’s name and logo on a Microsoft Website. Microsoft had deeplinked into the Ticketmaster site by bypassing the homepage of Ticketmaster. Though the case was settled out of court, the settlement agreement provided that ‘deep links’ could not be made, while direct hyperlinks to the homepage of the Ticketmaster Website were permitted. This out-of-court settlement leaves an important question unanswered – Does deeplinking amount to trademark violation?

Unfair Competition may be another malleable cause of action where it is not possible to show copyright or trademark infringement. Unfair competition involves causing economic injurty to a business through a deceptive or wrongful business practice. Misappropriation as a form of unfair competition has been used in other forms of linking, though not particularly hyperlinking, when a person free rides upon a persons time-sensitive information thereby threatening the existence of the concerned party.

Defamation claims may also arise if the hyperlink itself consists of a defamatory statement or image or if it links to another page containing defamatory material.

A difficulty also arises in pinpointing the liability of a party, if hyperlinking is declared illegal. While deciding the liability in hyperlinking, three parties may be blamed: (i) the hyperlink provider, (ii) the user and (iii) the Internet Service Provider (ISP). Which party is liable will depend upon the facts and circumstances of each case.

Defences to Hyperlinking Claims

It is a popular belief that the Internet is a free zone and the act of displaying matter on the Internet gives a user an implied license to use that matter. This belief is commonly known as the implied license or implied public access theory. Another defence that may be used is the fair use doctrine defence that is used while deciding intellectual property claims. By proving that the matter is used fairly and for non-commercial purposes, a person may be able to defend a hyperlinking claim. However, these defences may not be applicable if a person uses the matter for commercial purposes or to compete with the rightful owner of the matter.

Conclusion

After having discussed the issues that may arise in relation to hyperlinking, it would be prudent to look before you link! It is always be advisable to enter into linking licenses or agreements to avoid future disputes. An adequate disclaimer, disclaiming any liability that may arise out of hyperlinking can also be useful. Each website must also have their copyright legend that can establish the owner’s identity. Software technology and programming can also be used to avoid any form of linking to your website.

In India, hyperlinking claims have still not arisen. However, if and when they do arise some Indian laws such as the Copyright Act, 1957, Trade and Merchandise Marks Act, 1958, (the Trademarks Act, 1999, once it comes into force), Information Technology Act and the Law of Torts may be used to deal with these issues.

* The articles or opinions expressed in the articles must not be construed as any legal advice.