First, the good news.
In a landmark 2014 decision the European Court of Justice (ECJ) held that linking to content which is freely available on the web is not unlawful. This principle applies whether the link is a simple link (which links to the home page of another site) or a deep link (which links to another page embedded in that other website). It also applies to framing content from other sites.
However over the course of subsequent ECJ decisions, the following points emerged:
- Linking to content on another website, which was included on that website without the authority of the original content owner, could be in breach of the content owner’s copyright.
- A website operator can place restrictions in its website terms against linking to its content (there is still a question-mark around the enforceability of such a restriction in the UK however).
So bottom line: although hyperlinking to another’s site is not necessarily unlawful, it is not altogether risk free. Here are some ‘dos and don’ts’:
- If at all possible, try and obtain consent from the linked site operator for the hyper-link.
- Is the site you are linking to using such content without authority?
- Do the terms and conditions of the linked site contain any restrictions on hyperlinking?
- Is the information contained in the linked site accurate and up to date?
- Consider including a disclaimer concerning the reliability of any information contained in the linked site.
- Try to present the link in such a way that your site and the linked site are clearly distinguished.
- Be careful to avoid any misrepresentation as to the relationship between the two sites – for example that there is a commercial relationship between the two, when there isn’t.
- Exercise caution around using the linked site operator’s trademark. In particular avoid displaying their brand next to the link on your site without permission, as this could result in trademark infringement.
- Don’t include another website’s content on your site where the availability of such content on the other website is restricted to subscribers.
Andrew Elishahoff is a Senior Consultant at Peregrine Law Limited and can be reached at firstname.lastname@example.org.