What have the courts said about linking and framing?
What is linking?
Linking is the process by which computer users can navigate between different web-sites on the Internet. There are two types of linking. The first is hypertext reference linking, whereby the web user moves from one site to another by clicking on a highlighted word or icon. The second is known as "deep-linking", whereby another web-sites" material appears as an integral part of the first web-site.
What is framing?
Framing is in fact linking in another form. It allows another's web-site to appear on screen within the frame of your own web-site.
Why might web-site owners object to linking or framing?
There are a number of reasons.
There is a risk that the computer user may be confused into believing that the two sites are commercially connected, possibly allowing one web-site operator to trade off the reputation of the other. Your brand may also be damaged by links to disreputable web-sites. Furthermore, in the case of "deep-linking", access to a web-site may be made without seeing its home page or other component parts such as adverts or legal terms and conditions, and the computer user may not even know that the has left one web-site and is now on another. Issues of trade mark and copyright infringement database right infringement and passing off may also arise. What have the courts said about linking and framing? Unfortunately, there have been few helpful or authoritative cases in the UK. A number of cases have been settled prior to coming to trial.
In the US, in a recent case the Californian Federal Court decided that "deep-linking" did not constitute copyright infringement and dismissed a claim of unfair competition. The Court concluded that "deep-linking" was acceptable as long as there was no deception as to what was happening and the user of the website was aware that he was being transferred to another site.
More recent cases in Europe have seen claimants seeking to utilise the (relatively) new EC directive on databases (incorporated into UK legislation by the Database Regulations). In these cases, the defendants entered the claimants' databases through links that permitted access without having to enter the claimants' portal. This led to users bypassing adverts on the claimants' sites (from which the claimants derived revenue) and the courts concluded that this constituted "prejudicial re-utilisation" of the claimants' databases.
Can I stop unauthorised linking and framing of my web-site?
Yes, there are certain technical steps you can take. There are many online resources to consult including www.searchenginewatch.com, while references to a site elsewhere on the Internet can be checked by using a number of tools including www.linkpopularity.com.
You may also wish to make it clear in your web-site terms and conditions whether or not you permit linking to your web-site. This may help to defeat an argument that by posting information on the Internet you are giving an implied licence that anyone may link to you web-site.
Is it safe to use links and frames in my web-site?
There certainly may be risks in linking and framing. You need to be very careful and may want to seek legal advice. Whilst hypertext reference linking is unlikely to constitute trade mark infringement, deep-linking and framing is more problematic. If in doubt, you should obtain the consent of the owner of the web-site to which you want to link or frame. If you don't obtain permission, you should not by-pass the web-site's home page and include a disclaimer that the sites are not associated.
