Legal liability surrounding hyperlinks

Hyperlinks are active images, symbols or text that internet users can “click” on to be immediately transferred to another web page. The widespread use and ease of linking means that the legal consequences can be overlooked. Businesses need to be cautious when placing hyperlinks on their website as they can give rise to claims of copyright and trademark infringement or defamation.

When could linking amount to copyright infringement?

In general, including a hyperlink to a website containing copyright work that is published on the internet is unlikely to amount to copyright infringement, as there is no actual copying involved. By clicking on a link, a user is simply transferred to the web page of the original author and no reproduction is involved.

Although the law in this area is still largely unresolved, linking could amount to copyright infringement in the following circumstances:

• A linker may infringe copyright by linking to a work that is published to a restricted audience.

• This could occur where the linker makes subscriber-only content available to non-subscribers by circumventing a pay wall, or where the link is to a consolidated version of a work, such as a film, that would otherwise only be accessible through many different files that would be difficult or time-consuming for an internet user to locate, access and consolidate.

• Linking could infringe copyright in a work where it amounts to a linker authorising acts of copyright infringement by internet users.

• This might occur where hyperlinks authorise, allow or make it easier for internet users to copy an infringing or pirated copy of a work, or commercially exploit a work where this is prohibited in the linked website’s terms of use.

Can linking give rise to liability for defamation?

An action for defamation can be brought against the original publisher as well as anyone who is involved in publishing, re-publishing or distributing the defamatory material.

Even though the case law is not definitive, a website which links to a web page publishing defamatory material may give rise to a claim for defamation. This is because a hyperlink may be interpreted as directing users to defamatory content which is sufficient to amount to publication of that defamatory material. This can be likened to the classic example of a person sitting beside a defamatory poster on the road and pointing to it whenever someone passes, which was held to amount to defamation. 

Conversely, in Metropolitan v Google a link to defamatory material generated by an automated search engine system without any direct human involvement was not sufficient to amount to publication of defamatory material.

Can linking amount to trademark infringement?

When a symbol or word that forms part of the hyperlink is the registered trademark of another party this may raise issues of trademark infringement. In Australia, there has not yet been any litigation over this issue.

A view that is commonly held is that a trademark used as a hyperlink will not amount to trademark infringement, if the context of its use precludes the likelihood of confusion. For example, if a beverage retailer’s website placed a hyperlink button to a fast food retailer’s logo, this would probably not be an infringement because it would accurately indicate that clicking on that button would immediately move the user to the genuine fast food retailer’s website.

However, a claim of trademark infringement may arise in a situation where a website owner uses the trademark hyperlink to indicate some connection with the other website or its operator to his or her own goods or services.  

What are the issues surrounding “deep linking”?

Deep-linking refers to where a hyperlink transfers a browser to the internal pages of a website rather than simply the homepage. Some website operators object to deep-linking on the basis that users may not see and comply with terms and conditions contained on a linked website’s homepage (which may result in a claim of authorising copyright infringement). 

Deep linking is a hotly contested issue in the United States as evidenced by cases such as Ticketmaster v Microsoft and Ticketmaster v Tickets.com, which have still left the issue unresolved. The fact that deep linking is now common practice in Australia and overseas suggests that it is acceptable conduct, but as there is still currently no legislation or case law in Australia dealing with this, it is important for website operators to be aware that there are legal issues surrounding deep linking.