Hyperlinking

A significant number of users regard hyperlinks as a fundamental feature of the web.  Unless a user knows the full URL to every web page;  the only way of navigating the web is through following hyperlinks. The mere fact that someone publishes a website and makes it available on the web without placing a robots.txt file on the website means there is an implied licence to link to it.

However there is some uncertainty about the legality of various linking practices.  It is considered proper etiquette to ask permission from other websites when it comes to linking to them.

The most effective way to manage the unique risks posed by linking and framing is to refrain from engaging in them until you are able to reach some consensus with the party whose content you wish to link to. It is common for website owners to reach a consensus on linking practices and enter into a linking agreement with another website operator.  Often website owners post their linking policies on their website.  It is recommended that you peruse the terms of these policies to ensure you are engaging in practices which comply with the policies.  Some websites prohibit linking altogether.

There are template linking agreements available online which can be adapted to your unique needs.  There are various kinds of link agreements including ‘reciprocal link agreements’ and ‘single link agreements’.  When considering a link agreement it is important there is sufficient clarity in the terms and the critical elements are canvassed.

For instance the agreement should clearly identify the parties, the types and locations of any hyperlinks,  provisions to protect intellectual property rights, data protection, warranties and indemnities, termination
procedures, limitation of liability and confidentiality clauses.

If you are unable or unwilling to obtain permission from the other party you should include a prominently displayed  disclaimer on your website to the effect that you are not in any way associated with any third party sites which link to your website.  Such a clause may assist you in avoiding or at least mitigating any legal damages in respect of claims made against you for trade mark liability, passing off and/or misleading and deceptive conduct under the Competition And Consumer Act 2010 (Cth).  However there is no guarantee that a disclaimer will enable you to escape liability.

It is preferable to be as comprehensive as possible in describing the link/s the subject of the agreement, their size, whether they are to be represented as text or a logo, and their exact positioning on the website.  A graphical depiction of the image appended to the Schedule of the Agreement is a useful way of avoiding misunderstandings and minimising subsequent disagreements in respect of the subject matter.

Many linking agreements are formed without any form of payment. However where monetary considerations are involved,  it is recommended that the agreement include specific provisions addressing the payment structure, such as the triggering mechanism for payment, whether a payment is to be in the form of a flat fee,  expressed as a percentage of transaction fees,  or as a division of advertising revenues.

It depends on how elaborate your linking agreement needs to be, which in turn will be dependent on your business needs and expectations. At a bare minimum, issues such as appropriate payment, timing, frequency, methods of payment, link maintenance and service level issues should be included in a Link Agreement.  You should also consider whether the links are to be non-exclusive, non-assignable or transferable and include a clause providing for revocation of the agreement.

As a practical matter it is equally important that you review the content of a website to which you propose to establish links to ensure that it maintains its integrity.  Particular caution should be exercised where the website contains any kind of questionable content.  As stated, it is important when structuring your website to impress upon the end user that your website is not responsible for any third party content accessed through links which appear on your website.

Disclaimer:  This site is intended to operate purely as an informational  resource, a general overview of intellectual property and other related legal issues arising online.   It isn’t a substitute for professional legal advice from a lawyer certified to provide legal advice in your jurisdiction.  Neither is it intended to create an attorney-client  relationship.   The law varies in each jurisdiction and we do not warrant the accuracy, completeness or usefulness of any material you read here.

One Response to Hyperlinking

  1. Pingback: Defamation liability for hyperlinks on appeal to Canadian Supreme Court – Crookes v Newton | Pace Legal Intellectual Property

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