Linking through the laws of the Internet

They also raise interesting legal issues which Web site owners must consider. This includes misleading and deceptive conduct, and copyright and trademark infringement.

Traditionally, Web site owners have perceived linking as being beneficial to the linked-to Web site. Traffic and hits are major yardsticks of a Web site's success and the linked-to Web site will profit from a greater number of visitors to its site and also advertising revenue.

However, legal issues need also be considered when entering into a linking arrangement with another Web site.

As linking directs the user to information on another Web site's page, copyright infringement is an obvious concern. Generally, a hyperlink to a Web page will not constitute copyright infringement as the linking site does not necessarily copy and publish the information.

However, where the linking site has knowledge that the linked-to site contains infringing copyright material, it may be liable for copyright infringement under the concept of 'authorisation'.

Under the recently amended Copyright Act 1968 (Cth), a court will consider the following factors in determining whether a linking Web site authorises copyright infringement on the linked-to Web site by the mere act of linking:

• The extent (if any) of the Web site owner's power to prevent copyright infringement on the linked-to Web site;

• The nature of the relationship between the respective Web site owners; and

• Whether the linking Web site owner took reasonable steps to prevent or avoid copyright infringement on the linked-to Web site, including compliance with any relevant industry codes of practice.

Legal issues may also arise in relation to misleading and deceptive conduct provisions under the Trade Practices Act, or common law provisions of passing off.

Web site owners should be mindful that the act of linking may be perceived as a false connection or affiliation. Users should not be misled, confused or deceived regarding the overall appearance and relationship of the linked Web sites.

Web site developers will often set up a link by incorporating the logo or trade mark of the linked-to site as the linking icon. This should only be done where the linked-to site has consented under the terms of an unequivocal licence. In the absence of this kind of consent, there is a grave risk that the linking site will be infringing the trade mark.

A recent example of these legal issues is the Washington Post v Total News case. Total News operated a news information Web site and when users clicked on an icon, the user linked to the corresponding Web site of a news service, including CNN and Time Magazine.

The framing of these linked-to Web sites on the original Total News Web site raised legal issues including trademark infringement, copyright infringement and false and misleading representation. Though the matter was settled out of court and these legal issues were not directly resolved, the settlement between the parties necessitated a linking agreement.

The case highlighted the need for an agreement to be effected prior to implementation of the linking process.

A palpable advantage of using the Internet is the free flow of information. Easy searching and effortless transmission between sites is facilitated by linking.

While the legal world is still grappling with the concept of linking, linking licences remain a commercial reality and an important consideration. Web site owners in particular should implement linking agreements to capture all necessary legal issues and maintain quality control over the contents of their Web site.

Jeremy Szwider is a lawyer at Phillips Fox and can be contacted on 03 9274 5233 or at jeremy.szwider@phillipsfox.com.