Links are fundamental to the web; without them it would literally not exist. So, it is surprising that legal advice on linking usually starts by counselling the linker that they should first obtain permission. See, for example, Linking and Framing on Out-Law.com (admittedly, that was 2008) and Think before you link on Pitmans’ Insights (2017).

Not only is this impractical, but also most sites are in fact keen for others to link to them for the attendant “eyeballs” and the “Google juice”. So, whilst strictly in law permission is needed, in practice we can assume permission if we link responsibly.

The situations where links are likely to give rise to problems concern, firstly, what is linked to, for example:

• links to unlawful material, eg obscene or defamatory material;
• links to copyright-protected works or otherwise restricted content;

and, second, the link text itself or the context of the link, for example:

• (mis)use of brand names and trade marks;
• misleading or defamatory links.

We’ll consider the former further below. But first let’s consider what was previously a key issue; not so much now.

Deep linking

Deep linking refers to the practice of linking to pages within a website rather than to the home page of the site. That was once a problem for some publishers; but it is commonplace and largely unobjectionable now.

As Out-Law explained:

“Most sites are [in 2008] unlikely to object to deep linking. However, some sites do object to deep links. Reasons that have been given include the home page having the most prominent branding and it being a site’s most lucrative third party advertising. These reasons may be flawed: a well-designed site should make its identity clear on every page, and users spend more time on internal pages than home pages, so internal pages arguably should carry the adverts.”

The Shetland Times v Wills and Zetnews Ltd was an early (1997) case concerning deep linking between two competitor sites. The Shetland Times was successful in obtaining an interim interdict (injunction) against the defenders, the Shetland News, preventing the latter from providing links on their web pages to specific articles published on the Shetland Times site. However, the judge ruled without a complete understanding of the technology involved and the decision was based on the law governing cable television. The case settled out of court in November 1997, so there was no final judgment that could be used as legal precedent. (See http://bit.ly/JILT1998-2 for an overview of the law at the time.)

Over time, the increasing importance of Google results and, in recent years, the rise of social media, have led to deep linking becoming commonplace and indeed sought after. A large proportion of web links today – billions a day – emanate from “sharing” articles and other web pages and media via Facebook, Twitter and other social media sites. Effective website design now includes use of facilities which optimise the context of these deep links on social media; meta data tags on the web pages will determine the snippet and image (if any) that will be displayed when a link to that page is shared on social media.

Restricted content

What of links to works which infringe copyright or which are otherwise restricted, for example behind a subscription paywall? According to EU law, these cases hinge on whether and in what circumstance the links “communicate the work to the public”.

In 2014 in Svensson and Others v Retriever Sverige AB (C-466/12) (reported by Bird & Bird at http://bit.ly/twobirdsSvensson) the Court of Justice of the EU held that links to protected works which were already freely available online did not infringe copyright in those works:

“The key element of the decision is that the links were provided to works which were already publicly available to all Internet users. Where the content linked to is not freely available elsewhere, for example it is on a site requiring a subscription, the linking website would likely be found to be communicating the work to a new public and therefore liable for copyright infringement.”

In September 2016 the CJEU held, in GS Media v Sanoma Media Netherlands and Others (C-160/15) (see http://bit.ly/twobirdsGSmedia) that whether a link to an unauthorised work was “communication to the public” depended on knowledge of the illegality:

“[If] the links are provided other than for financial gain by someone who did not know, and could not reasonably have known, that the linked-to publication was unauthorised … the link is not a communication to the public. But if the link was provided by someone acting for financial gain, then full knowledge of illegality must be presumed. The link would then amount to a communication to the public unless the presumption of knowledge were rebutted.”

Tomasz Targosz, writing on the Kluwer Copyright Blog in A new chapter in the linking saga is not impressed. He says of the GS Media decision (at http://bit.ly/kluwerGSmedia):

“I suspect that the origin of the Svensson decision and the underlying threat of ‘paralysing the internet’, should linking be found infringing, is at least partly responsible for the confusion, which … has been only aggravated by the court’s latest contribution. [It] is the most conspicuous example to date of the CJEU’s continuous efforts to ignore what has been left of a sound copyright theory. Unfortunately, it offers very little in return.”

Good practice

1 Don’t link to a site or a particular page if you feel there may be any objection. If a site objects to a link, remove it immediately.

2 Take care when choosing or crafting your link text; context is all. Make clear the subject of your target and don’t mislead.

3 Link at the appropriate level; that URL you copied from your browser is not necessarily the optimum. A parent page or folder or a home page may be more appropriate.

4 Authors and publishers expect to be attributed and appreciate those who take care to do so fully and accurately.

5 Be careful when citing brand names in or in context with your link text.

Nick Holmes is Editor of the Newsletter. Email nickholmes@infolaw.co.uk. Twitter @nickholmes.

Image: Links cc by Balrog Daemon on Flickr.