When poetry website “Der Poet” discovered its content was framed by advertising on an information portal using framing technology, it was not impressed.
Who: “Der Poet” w Who: “Der Poet” website
Where: Landgericht Cologne
A German information and navigation portal (“the Portal”) carried links to numerous websites including that of the claimant in this case, which operated under the name “Der Poet”. As the name suggested, the site was essentially a database of poems and prose, painstakingly collected by the site owner.
When visitors to the Portal clicked on the relevant link, content from Der Poet appeared on the screen, but was still framed by Portal material. Also visible in a part of the screen next door to the Der Poet content, was advertising carried on the Portal.
Der Poet brought proceedings. They said that they had chosen not to allow advertising to appear on their own site alongside poetry and that the systematic use of the site’s content by the Portal was an infringement of Der Poet’s intellectual property rights.
The Portal argued that it must be in “Der Poet’s” interest to have as many people access their site as possible, and that having failed to introduce the quite low grade technology required to prevent framing, Der Poet had impliedly consented to this sort of use of their content.
The court accepted Der Poet’s arguments and granted an injunction preventing further framed links from the Portal to Der Poet. In line with previous cases in this area, the court held that the content of Der Poet classified as a “database” for the purposes of intellectual property rights protection. This meant that regardless of the warnings on the Portal that links were external and that the Portal was not responsible for any content displayed having clicked on the link, the database right in Der Poet had been infringed by the repeated and systematic access to the Der Poet site for which the Portal was responsible.
Regarding the “implied consent” argument, the court drew a distinction between a simple hypertext link and framing, particularly where the framing involved the display of advertising. It was up to Der Poet to decide how they wanted their content displayed, and it was not fair for the Portal to insist on Der Poet investing further monies on top of those sunk into creating the site, so as to introduce technological blocks to the framing process.
Why this matters:
The verdict in this case confirms that of previous courts in Germany and in other EU states which are, amazingly enough, achieving some level of consistency in this area. Simple links to home pages appear to be acceptable generally, whilst deep linking and framing are much more likely to be problematic, even if a disclaimer of the kind used in this case by the Portal is deployed.