January 2007

Website links: potential legal liability risks

Did you know that website links can be very dangerous for both you and the operator of the linked website?

The very point of the world-wide-web is, of course, connectivity ? but it is worth remembering that connectivity comes with some significant risks. In a recent case (Universal Music Australia Pty Ltd v. Cooper) several music copyright owners won a judgment in the Federal Court against a website operator whose website provided links to independent secondary sites at which music files (MP3) could be downloaded in breach of copyright ? highlighting that our long-held concerns about website linking are very real indeed.

Links between websites occur in several forms. Sometimes a user clicks on an icon (perhaps a small representation of the linked site's trade mark) whereupon the underlying website software is activated and the user is transported to the linked site.

In other cases the user is presented with highlighted and/or underlined text and by clicking the mouse on this text the user is transported to a second website at which, usually, more information on the highlighted subject matter can be found.

Sometimes the purpose of the link is simply convenience ? a helpful suggestion to the user as to where to find more information on the subject of interest. In other cases the purpose has a more commercial flavour; the link is designed to advertise the linked site and to promote browser-traffic to the linked site. This may reflect a commercial agreement between the operators of the two websites.

Many website operators encourage others to link to their website and include links to secondary sites without consideration of the risks involved. Some of those risks are:

Trade mark infringement - your use of another company's trade mark without its consent can constitute trade mark infringement, especially if that use creates the impression that your products or services are being sold under the second company's banner.

Misleading implications - your references to other companies and their products/services must not imply the existence of any affiliation or endorsement of your products/services where no such affiliation or endorsement exists. In other words you cannot use the link to imply that the operator of the other website endorses your business if that is not the case.

It is especially dangerous for you to direct users to other websites in circumstances where the user is not aware that he/she is leaving your site and entering another, independent site. In such cases it can appear as though the material to which the user has been connected remains a part of your site - and this can be serious misleading and deceptive conduct under the Trade Practices Act.

Liability for negligence - it is possible (though we are not aware of any case in which this has been argued) that by effectively "republishing" material on the linked website, you may be liable for negligent mis-statements or advice contained in the linked website.

Computer viruses - If a user downloads a computer virus from a linked site, you might be liable for any losses, especially if the user was not aware that he/she was leaving your site to enter a site operated by an unknown third party.

Liability for defamation - again, by "republishing" the defamatory material on the linked site, you may be liable for that defamation. There are several fascinating cases that demonstrate that you do not have to be the author of the defamatory statement to be liable for it. In one quaint old English case, merely pointing to a man holding a placard (that contained defamatory material about the plaintiff) was held to be defamation.

Copyright issues - the recent decision in Cooper's case involved a relatively extreme case where the very purpose of the website was to facilitate access to pirated music files located on third party websites. By clicking on the song title the user was immediately caused to download the pirated MP3 file. While this did not constitute direct infringement of copyright by the website operator, it did amount to "authorising" a copyright infringement and was in breach of the Copyright Act as a result.

What can you do? Recognition of the foregoing risks will, of course, not cause the extinction of linking ? it is simply too useful a communication tool and is thus too commercially valuable ? but such recognition should lead more website operators to take advantage of some simple and cost effective risk-management approaches:

  • Link only with website operators whom you know and trust and whose written permission you have to create the link.

  • Be particularly careful to get permission to use trade marks.

  • An agreement with the linked website operator is worthwhile - covering the way the link will work and allocating liability for content.

  • Always make it clear to users when they are leaving your website and migrating to a linked site.

  • Never facilitate or encourage users to infringe copyright of the linked site or of any third party.

  • Finally, have your website legally reviewed. It is surprising just how many legal issues crop up that have never been considered. A "due diligence" on your website can be an inexpensive safeguard against costly legal problems, even litigation, but it will also enhance the value of your website to your business and anyone who might be interested to invest in it or even buy it sometime in the future.