Hyperlinking: Some Legal Issues

By Edwina Marshall

In this issue of Connections we continue to explore the function of the Internet, lntranets and content management systems. When implementing an online information service in your school by connecting your school's Intranet to the World Wide Web, you should consider the information presented in this article.

One of the salient features of the World Wide Web (WWW) is the ability to link to other pages or to other parts of a document by means of a hyperlink (also known as a link, hypertext link or hotlink). It is this ability to hyper I ink that enables a user to browse or 'surf' the WWW rather than using more time-consuming and complex tasks to retrieve information, and that effectively gives the WWW its 'weblike' nature.

As with the emergence of any new technology, the exponential growth of digital technology and the Internet have brought with them their own set of legal conundrums and resulting legal debates. Consequently, we have a 'technology revolution', but essentially a legal vacuum in which laws that were created for a print-based medium, and then developed for other more tangible mediums such as film, must be applied. The law is attempting to address the issues raised by digital technology but lags behind its development and use.

Hyperlinking has various forms, such as inlining and outlining. lnlining is the means by which a WWW user can go to another site by clicking on a link. Outlining is the process by which a document, audio clip or image contained in one web page can be brought into another web page with the viewer unaware of its origin in what appears to be a seamless website. Whatever the form, hyperlinking raises a number of potential legal issues such as copyright or trademark infringement, passing off, commission of various torts and breach of contract.

The material contained in this article is for general information only and is not intended to be, nor should be relied upon as, a substitute for legal or other professional advice.

A detailed analysis of the complex and varied legal issues which can arise from activities such as hyperlinking is beyond the scope of this article. In short, it appears that the owners of websites to which a hyperlink has been created do not generally challenge the use of an inline hyperlink to their home page when the link itself is not misleading as to the ownership of the destination site and does not have a negative effect on the revenue of the destination site.

At this stage there has been no definitive legal pronouncement on the legality or otherwise of hyperlinking. However, from the limited court cases in which the issue has arisen and the direction being taken by international bodies and national governments, it is possible to offer some guiding principles:
• Check the destination website for any prohibition on hyperlinking, conditional permission or requirement for specific permission.
• Only link to the home page of a website.
• Ensure that the form in which the actual hyperlink on your website appears is not misleading in relation to the destination site and does not breach any intellectual property rights of third parties (for example using a registered trademark inappropriately)
• Seek permission to use outline links and frames.
• On your website include a disclaimer in relation to destination sites to which you have provided hyperlinks.

While the law continues to lag behind technological development, users of the WWW and, in particular, those who create websites and hyperlinks need to tread carefully but need not abandon the arguably indispensable practice of hyperlinking.

Edwina Marshall

Corporate Solicitor with Curriculum Corporation