Linking and the Law
PART 3
8. Linking and Publication – Ramifications for Defamation
There have been a number of cases that address the issue of whether or not posting a link can amount to publication for the purposes of defamation. It is not surprising that there is some divergence of opinion between Courts, and in essence the conclusion can be summed up with the phrase “it depends”.
A number of recent cases have involved Google. The important thing to remember is that not all the cases involving Google involve linking. One of the important English cases (Tamiz v Google[62]) deals with comments placed on a blog hosted by Google, and whether Google is a publisher for the purposes of defamation. The Australian cases of Trkulja v Google[63] and Trkulja v Yahoo[64] involve the return of search results (particularly involving illustrations the juxtaposition of which resulted in defamation by innuendo. Google’s general position is that it is a content neutral provider. Although this may be correct from a technological point of view, the matter becomes a little more complex when the way in which search results are displayed depends upon search algorithms developed by Google programmers and used in the delivery of search results. The issue of snippet – the brief record of the contents of the relevant web-page – and whether or not they can be defamatory was the issue in Metropolitan International Schools Ltd. v. Designtechnica Corpn.,[65] which held that despite the presence of this brief information, Google was not a publisher, although Abbot JA in A v Google opined that it was arguable that Google was a publisher for the purposes of dismissing an application by Google for summary judgement striking out a claim for defamation. He left open the possibility “to hold that a search engine is a publisher but with access to the defence of innocent dissemination”. Part of that determination may involve asking whether the automatic search result process contains a “stamp of human intervention”.
Curiously enough none of the cases referred to above carry any discussion of liability for simply providing a link to defamatory material. In all the cases there has been a deeper issue about services that are provided by Google, or the manner in which search results are displayed. However, the case of Crookes v Newton,[66] a decision of the Supreme Court of Canada provides authority at the highest level for the treatment of links in defamation proceedings. Indeed, the finding of the Court on links could well provide guidance in other areas of law. Before embarking upon that discussion there is an early New Zealand case that requires consideration.
The case of International Telephone Link Pty Ltd v IDG Communications Ltd[67] involved an application to strike out a claim for defamation regarding references in an article to a website which was created by a third party.
The article in question contained a summary of a number of allegations against the plaintiff that had been made by a Mr Leng on a website that he had created “as a warning to others”. At the end of the article was the URL for Mr Leng’s website.[68] The plaintiff claimed that the defendant republished the website publication by making reference to it. It should be emphasised that the article contained a report or summary of the allegations that the plaintiff considered defamatory.
Counsel for the defendant argued:
1. That the defendants cannot be regarded as having communicated the contents of the Website to anyone; a person does not communicate words nor convey their meaning by identifying where they can be found.
2. The defendants did not cause nor participate in the creation of the Website and are therefore not parties to the publication inherent in that creation.
3. That the references to the website were to the entirety of the site, although only portions thereof were defamatory.
Master Kennedy-Grant swiftly rejected the third submission, observing that few documents are defamatory in their entirety It therefore does not matter that the Website is not defamatory in its entirety. [Pge 5 (2)] The second submission was deemed to be irrelevant. He then went on to identify the crucial issue as whether it is arguable that the references to the website in the article were sufficient communication of the defamatory contents of the website to constitute publication of those contents and referred to a number of cases from the late nineteenth and early twentieth century.
The cases relied upon by the Judge involved circumstances where attention was drawn to the existence of defamatory content. In Hird v Wood[69] a person who sat near a placard which allegedly defamed the plaintiffs and pointed to it was held to have published the contents of the placard, even though it was not shown that he had written or been a party to the writing of the offending words. In Lawrence v Newberry[70] a letter which was published in a newspaper referred readers of the letter to a speech that contained defamatory content. In Hird v Wood, there was an immediacy about what happened. In Lawrence v Newberry a curious person would have to obtain a copy of the text to the speech. Master Kennedy-Grant observed:
There does not seem to me any difference in principle between what had to happen in Lawrence v Newberry for the publishee to receive the information intended to be conveyed and what had to happen in this case. A hundred years ago the reader in question would have picked up a back number of The Times or gone to the reading room of the local library; today he or she would log onto the Net and access the Website.
He referred to other cases where there was held to be “publication by reference” and concluded:
(a) the authorities referred to by counsel favour the view that, even where there is a lack of immediacy between the reference and the possibility of reading the material referred to, there can be publication; and
(b) the question of whether there has been adoption or approval or repetition of the material referred to is essentially a question of fact and, as such, fit for determination at trial.
Significantly there was no discussion of the nature of a link as a means of referencing potentially defamatory content and the thrust of the rationale was based upon publication by reference. The Judge was unconcerned about the nature of the reference or how it was provided. All that was need was for attention to be drawn to the referred defamatory content.
One point of distinction in this case was the fact that there had been a summary of the defamatory content in the body of the article which appeared in Computerworld magazine. The decision does not make it clear that the article appeared in an on-line version of the magazine. But the provision of the information provides a context to the provision of the link to a website where the actual details of the defamatory content may be found. It is not as thought the link existed in isolation, but provided a reference point for further information.
8.1 Crookes v Newton[71]
A similar situation arose in the case of Crookes v Newton.
It is settled law that to succeed in a defamation action, a plaintiff must first prove that defamatory words were published. Crookes v Newton holds that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content.
The facts in that case were these.
The appellant Crookes brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent Newton posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.
The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed.
The Court[72] began by considering the development of the publication rule. The scope of the rule was wide indeed. In one case a person whose role was to manually operate a printing press was found liable for defamatory words contained in the publication, despite being unaware of its contents. The rigour of the publication rule was ameliorated by the “innocent dissemination” defence, allowing booksellers and librarians to avoid liability if they had no actual knowledge of alleged libel, were not aware of circumstances that would give cause to suspect a libel, and were not negligent in failing to discover the libel.
The majority then went on to consider the nature of a hypertext links as a means of publication and returned to first principles.“To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.
The functionality of hyperlinks as a form of “publication” was then considered:
Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.
A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.
Thus the Court is saying that hyperlinks are essentially content neutral references to material that hyperlinkers
a) have not created and
b) do not control.
Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information. But the Court went on to consider a significantly wider issue – that of the internet itself.
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.[73]
However, this did not mean that there was a blanket defence available for those who hyperlinked to defamatory material. A hyperlink will constitute publication if it “presents content from the hyperlinked material in a way that actually repeats the defamatory content.” This might occur, for example, where a person inserts a hyperlink in text that repeats the defamatory content in the hyperlinked material. In these cases, the hyperlink would be more than a reference; it would be an expression of defamatory meaning. However, this had not occurred in the present case, and the majority dismissed the appeal.
McLachlin C.J.C. and Fish J., whilst in substantial agreement with the majority, held that “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” A hyperlinker should be liable for linked defamatory content if the surrounding context communicates agreement with the linked content. In such cases, the hyperlink “ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”
Deschamps J agreed with the outcome but differed considerably in approach. A blanket exclusion of all references from the scope of the publication rule erroneously treats all references alike. Deschamps J considered that the majority’s approach “disregards the fact that references vary greatly in how they make defamatory information available to readers and, consequently, in the harm they cause to reputations.” She proposed a solution that was nuanced and fact specific. A hyperlink would constitute publication if the plaintiff established two elements:
a) that the defendant “performed a deliberate act that made defamatory material readily available to a third party in a comprehensible form,” and
b) that “a third party received and understood the defamatory material.”
As to the first element, the burden would be upon the plaintiff to establish that the defendant played more than a passive instrumental role in making the information available. There would need to be reference to numerous factors bearing on the ease with which the referenced information could be accessed.
To establish the second element, plaintiffs would need to adduce direct evidence that a third party had received and understood the defamatory material, or convince the court to draw an inference to that effect based on the totality of the circumstances.
The difficulty with this approach, and with the contextual approach suggested by McLachlin CJ and Fish J is that it would erode the “bright line” rule proposed by the majority and which provides certainty in this area. Deschamps J’s approach is fact driven, whereas the contextual approach is dependent on the presence of indicia of “adoption or endorsement,” the scope of which is inherently uncertain. If the “bright line” rule provided by the majority were not present the proposals of the minority could have the effect of potentially inhibiting the use of hyperlinks to contentious material thus inhibiting the internet as a medium for free expression. This concern possibly encouraged the majority to establish their rule.
A further difficulty that follows from the minority approach is that it would shift the weight of litigation onto defendants in this difficult area. Although this is already the case with defamation as a “strict liability” tort the effect of the minority approach would be to lower the threshold of proof for a plaintiff. Internet users would be placed in the position of having to justify their conduct by reaching for the protection of a defence – and defamation proceedings are costly and beyond the resources of most. Although the wide availability of defences for hyperlinkers may, as Deschamps J. suggests, “dissuade overeager litigants from having a chilling effect on hyperlinking,” it would not deter plaintiffs who wish to stifle criticism by issuing gagging writs and intimidating defendants through costly litigation.
However, despite the welcome statement of the “bright line” rule by the majority, the case is not closed on hyperlinking. The Court expressly left open the question of whether the same principles apply to embedded or automatic hyperlinks. These hyperlinks automatically display referenced material with little or no prompting from the reader. They are distinguishable from the user-activated hyperlinks in Crookes. User activated links require users to click on the hyperlink in order to access content.
The Court declined to comment on the legal implications of automatic or embedded hyperlinks. It seems that they would constitute publication, according to the majority’s because they make third party content appear as part of the website that the hyperlinker controls. The third party material that is “linked-to” becomes a part of the users site and thereby constitutes publication by the user.
8.2 Concluding Thoughts on Crookes v Newton
The cases suggest as a starting point that links can be content neutral, and that their use may not have any legal implications nor attract liability if the material linked-to may be contentious. If the link acts as a reference point for “further reading or discussion” its function is clearly neutral.
The situation becomes different if the link goes beyond as reference point and adopts material in the linked-to site, or uses the site as an endorsement for the views expressed. This accords with the view of the majority in Crookes v Newton and was the situation in the case of International Telephone Link Pty Ltd v IDG Communications Ltd where the nature of material linked-to was coloured by the commentary published by the defendant.
Although Kaplan J seemed to focus more on the “electronic civil diosobedience” motive of the defendants in Universal City Studios v Reimerdes and Corley there can be little doubt that the use of links was anything but “content neutral” and was coloured by the commentary and actions of the defendants. It is for this reason that the differentiation between the defendants and an informational organ such as the LA Times becomes clear. In such a case the link has a referencing or “for further information” quality rather than the encouragement of an unlawful act.
Thus, although the “contextual” approach of McLachlin CJ and Fish J was that of a minority, nevertheless it cannot be denied that there is a contextual element that pervades the use of links. Although the decision of the majority provides welcome clarification, it is not absolute. The technologists may see links as mere code that enables internet navigation, and thereby is content neutral. The law sees it in a more nuanced way.
9. The European View – Svensson v Retreiver Sverige AB
Linking, in the context of copyright infringement, has come under scrutiny in Europe. Under EU copyright laws, authors have the exclusive right to control the “communication to the public” and “the making available to the public” of their works, whilst performers, producers and others also have exclusive right to control the “making available to the public” of their works. It is generally an infringement of those rights if others communicate or make available content without permission from rights holders to do so. The general approach is that the rights around the ‘communication to the public’ are said to “cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting” and “should not cover any other acts”.
In the case of Svensson v Retreiver Sverige AB[74] The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how that EU law applies in the case of hyperlinks. The issue is whether anyone, other than the holder of copyright in a certain work ,who supplies a clickable link to the work on his website, communicates the work to the public. The Swedish court has also asked whether the answer to that question changes if access to the content is restricted in some way or by the way the content is displayed after a link is clicked on.
The case began when a Swedish journalist, Svensson, wrote an article which was published by a Swedish newspaper in print and on the paper’s website. An e-commerce company, Retriever Sverige AB, ran a subscription service which gave its customers access to newspaper articles.
Svensson sued Retriever Sverige AB for “equitable remuneration”, alleging that Retriever had made his article available to Retriever subscribers through the search and alert functions on its website. He stated that this came within the copyright-relevant acts of either a communication to the public or the public performance of a work. Whatever the situation, Retriever needed his consent and he had not granted it.
Retriever denied any liability. One of its key arguments was that the linking mechanisms did not constitute copyright-relevant acts, and there was therefore no infringement of copyright law. The fact that a Retriever customer had to log in to Retriever’s website and then fill in a search term was also relevant.
The European Copyright Society[75] in a submission to the Court has argued that the act of hyperlinking to copyright material without permission ought not to constitute outright infringement. In an 18 page submission[76] the Society argues[77]:
“Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic ‘transmission’ of the work, or placing the work into an electronic network or system from which it can be accessed. This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):
‘Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not….
Hyperlinks … share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.’
The Society provided a very strong and technologically correct statement on the function of a link within the context of transmission and communication of a work.
“(a) Hyperlinks are not communications because establishing a hyperlink does not amount to “transmission” of a work, and such transmission is a prerequisite for “communication”
(b) Even if transmission is not necessary for there to be a “communication”, the rights of the copyright owner apply only to communication to the public “of the work”, and whatever a hyperlink provides, it is not “of a work””[78]
In addition, the Society argued that the CJEU should generally uphold that hyperlinking does not constitute a communication to the public of copyrighted content regardless of the ‘framing’ given to the content when it appears after a hyperlink has been clicked on.
“In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.”[79]
Reference was also made to domestic court cases from Germany and Norway which are consistent with the views advanced by the European Copyright Society.
In Paperboy,[80] the German Bundesgerichtshof found that the “paperboy search engine” which searched newspaper websites and provided search results including hyperlinks, did not thereby infringe. The Court considered whether hyperlinking was “communication” under German law and under Article 3 of the Information Society Directive, 2001/29, concluding that there was no infringement. It observed:
[42] A person who sets a hyperlink to a website with a work protected under copyright law which has been made available to the public by the copyright owner, does not commit an act of exploitation under copyright law by doing so but only refers to the work in a manner which facilitates the access already provided …. He neither keeps the protected work on demand, nor does he transmit it himself following the demand by third parties. Not he, but the person who has put the work on the internet, decides whether the work remains available to the public. If the web page containing the protected work is deleted after the setting of the hyperlink, the hyperlink misses. Access to the work is only made possible through the hyperlink and therefore the work literally is made available to a user, who does not already know the URL as the precise name of the source of the webpage on the internet. This is however no different to a reference to a print or to a website in the footnote of a publication.
[43] The Information Society Directive, …., has not changed the assessment of hyperlinks, as are in question here, under copyright law … According to Art.3(1) of the Information Society Directive Member States are obliged to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, including the making available to the public of their works in such a way that members of the public may access them from a place and a time individually chosen by them. This provision refers to the use of works in their communication to the public. The setting of hyperlinks is not a communication in this sense; it enables neither the (further) keeping available of the work nor the on-demand transmission of the work to the user.
In Napster.no[81], the Supreme Court of Norway held that the posting on a website (in this case, http://www.napster.no) of hyperlinks that led to unlawfully uploaded MP3 files did not necessarily constitute an act of making the files available to the public. It stated:
“[44] There has been no dispute that those uploading the music files carried out illegal copying and made the works publicly available. If the linking is regarded as making works publicly available, this will concern linking to both lawfully and unlawfully disclosed material. The conception of what constitutes making works publicly available must be the same in both cases…
[45] The appellants claim that the linking involved an independent and immediate access to the music. A [the respondent] for his part has pointed out that the links only contained an address to a webpage and that, by clicking on the link, the music file would be stored temporarily on the user’s own computer. Not until such storage took place would the user be able to play the music file or download it for later use.
[46] In my opinion, it is not decisive whether [direct/deep links] or [superficial links – links to the main page of the website] are involved, nor whether the user technically is “located” on his/her own computer, on napster.no, or has “moved” to the website to which the link leads. What must be decisive is how the technique functions – whether and how access is given.
[47] It cannot be doubted that simply making a website address known by rendering it on the internet is not making a work publicly available. This must be the case independent of whether the address concerns lawfully or unlawfully posted material…”
The European Copyright Society also referred to the case of Perfect 10 v Google Inc.,[82] a decision of the 9th Circuit Court of Appeals.
10. Perfect 10 v Google – Moving Away from Reimerdes & Corley
The factual background was as follows:
Perfect 10 marketed and sold copyrighted images of nude models. Among other enterprises, it operated a subscription website on the Internet. Subscribers paid a monthly fee to view Perfect 10 images in a “members’ area” of the site. Subscribers had to use a password to log into the members’ area. Google did not include these password-protected images from the members’ area in Google’s index or database. Perfect 10 also licensed Fonestarz Media Limited to sell and distribute Perfect 10’s reduced-size copyrighted images for download and use on cell phones.
Some website publishers republished Perfect 10’s images on the Internet without authorization. Once this occurred, Google’s search engine automatically indexed the webpages containing these images and provided thumbnail versions of images in response to user inquiries. When a user clicked on the thumbnail image returned by Google’s search engine, the user’s browser accessed the third-party webpage and in-line links to the full-sized infringing image stored on the website publisher’s computer. This image appeared, in its original context, on the lower portion of the window on the user’s computer screen framed by information from Google’s web-page.
Perfect 10 sued Google claiming that the latter’s “Google Image search” infringed Perfect 10’s copyrighted photographs of nude models, when it provided users of the search engine with thumbnail versions of Perfect 10’s images, accompanied by hyperlinks to the website publisher’s page.
The Court commenced by examining the operation of Google’s search engine and the way in which searches were returned and the operation of the links that were provided to such returns. It observed that there was no dispute that Google’s computers stored thumbnail versions of Perfect 10’s copyrighted images and communicated copies of the thumbnails to Google users. However, it also noted that Google did not display a full sized infringing image when Google framed in-line linked images that appear on a user’s computer screen.
“Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy.”[83]
The Court went on to look at the way that the technology operated:
“Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause in-fringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display rights.”
It was for that reason that the Court concluded that
“Google’s search engine communicates HTML instructions that tell a user’s browser where to find full-size images on a website publisher’s computer, but Google does not itself distribute copies of the infringing photographs. It is the website publisher’s computer that distributes copies of the images by transmitting the photographic image electronically to the user’s computer.”[84]
This case is useful in that it considers the nature of the technology in arriving at its conclusion. However, unlike Crookes v Newton which attempted to lay down some bright line rules about links and their general function within the legal framework, the decision in Perfect 10 is fact specific. Whilst, within the factual matrix of the case, Google was not liable for direct infringement, there was still the problem of assisting third-party websites in distributing their infringing copies of photographs to a worldwide market and assisting worldwide audience of users to access infringing materials, for purpose of Perfect 10’s contributory infringement claim.
In addition, the decision seems to be a step away from Judge Kaplan’s approach in Reimerdes & Corley which relied on the “functional equivalence” approach. The Court in Perfect 10 effectively adopted a content neutrality approach to the issue of direct infringement, focussing especially upon the nature of the code and the HTML instructions which they held were not equivalent to showing a copy. Applying the approach in Reimerdes & Corley that would amount to a “distinction without a difference” but the more recent cases seem to demonstrate a shift away from such a rationale to a more nuanced understanding of links and their use as a coded reference point.[85]
Return to Svensson
Which brings us back to Svensson and the recent decision of the Court of Justice of the European Union (CJEU). This decision could be viewed as a compromise. It contains some relief to those who link to content, but at the some time hedges that around with exceptions. Regrettably the decisions seems to take little account of the technological underpinning of hyperlinking, nor that fact that links are in essence neutral. AT the same time it must be remembered that the decision relates to EU copyright law and therefore cannot be said to contain rules of universal application.
In summary the Court held as follows:
- A clickable direct link to a copyright work made freely available on the internet with the authority of the copyright holder does not infringe.
- It makes no difference to that if a user clicking on the link is given the impression that the work is on the linking site.
- However, it seems that a clickable link will (unless saved by any applicable copyright exceptions) infringe if the copyright holder has not itself authorised the work to be made freely available on the internet.
- If the work is initially made available on the internet with restrictions so that only the site’s subscribers can access it, then a link that circumvents those restrictions will infringe (again subject to any applicable exceptions and further discussion below).
- The same is true where the work is no longer available on the site on which it was initially communicated, or where it was initially freely available and subsequently restricted, while being accessible on another site without the copyright holder’s authorisation.
Within the context of copyright law, if material is made freely available on the Internet by the copyright holder, there are no infringement implications. Linking to the content, assuming that a link amounts to an act of communication, does not constitute infringement. The Court said: “the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public, as referred to in that provision.”
Graham Smith on his Cyberleagle blog makes the following comment:
The situation begins to get complex if the copyright holder has not authorised the placing of the material on the Internet.. Once again there is little contentious in this proposition. The placing of material on the Internet without the authorisation of the copyright holder (and making it available) involves acts of infringement unless one can fall within exceptions or claim a permitted act. The issue seems to become a little more complex, but in reality it is not, if the content is place on the Internet with the approval of the copyright holder but is subject to restrictions which are subsequently circumvented. Clealry, unless one can fall within exceptions or establish a permitted use, there ar infringement implications in providing such material.
There are a couple of observations that must be made about the CJEU decision. The first is that it is not a decision about the implications of hypertext links. There is no discussion about the technology or implications of hypertext links. In that respect the decision is a little disappointing. Secondly, what the decision IS about is the nature communication within the context of copyright law. It is, therefore, a decision about copyright.
A factor which complicates the issue of communication is whether or not there has been communication to a “new public”. Laurence Eastham at the Society for Computers and the Law makes the following observations:
“The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised. According to the Court, there is no such ‘new public’ in the case of the site operated by Retriever Sverige. As the works offered on the site of theGöteborgs-Posten were freely accessible, the users of Retriever Sverige’s site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göteborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige’s site, whereas in fact it comes from the Göteborgs-Posten.
The Court concludes from this that the owner of a web site, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.
The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.”
So is Svensson a helpful decision. The general reaction is positive. Iain Connor makes the following assessment:
“On the whole, this is a good decision for rights holders and consumers alike. It makes clear that you can provide links to content freely available on the web but that you need permission from the copyright holder in all other circumstances and so it puts rights holders in control of their business model.”
“The slight wrinkle is that where content is freely available, the decision appears to allow it to be ‘framed’ on a third party website,” he said. “However, it should be possible to manage the framing issue by robust website terms and conditions and other legal means such as the author’s right not to have his work falsely attributed to another.”
By focussing on communication, the Court avoided the thorny issue of the function and essential meaning of hypertext links. This was probably by design. By restricting their decision strictly to the ambit of the questions posed by the national court, the CJEU adopted a narrow focus the the issue, restricting the decision to the questions at hand and further restricting the decision to the strict framework of copyright law. The issues have been addressed strictly within that context and the content neutrality (or partiality) of hypertext links need not, therefore, have been considered.
11. Linking — issues arising
The cases that have been decided on the issue of linking do not establish with any degree of clarity that the provision of a link in all cases will automatically result in a copyright infringement. The mere provision of a link does not mean that a copy is made. Rather like a signpost, it directs a user to a particular site from which information may be obtained. The link itself does not involve copying material from another website.
Thus the mere provision of a link should not incur any direct liability for copyright infringement of website material. The work that is at the destination of the link is neither displayed nor communicated. The user is merely told where the work may be found.
When the site is accessed and temporary copies have been made into RAM, the matter is one between the copyright owner and the browser. Claims for secondary infringement against intermediaries will be futile.[86] The mere provision of a link without more does not implicate the link provider. It seems to have been the case in Universal City Studios v Reimerdes[87] and RIAA v Napster[88] to pursue the provider of the links or the operator of the Napster server using US contributory infringement theory as an expedient rather than pursue the millions of unidentified direct infringers. However, in the absence of any issues of contributory infringement, encouragement or interference with property rights that are inherent in framing and deep linking, the link provider commits no infringement.
Browsing webpages, if it is to be a “functional equivalent” of anything, may be the equivalent of reading a book in an environment akin to a public library. It thus falls outside the acts restricted by copyright, and there is no basis for secondary liability claims.
It may also be argued that anyone who places material on the internet without effective restrictions grants an implied licence to an internet user to make copies of the material and to any other website operator who links to it. The vast scope of the internet makes contractual solutions — agreements between owners of linking and linked-to sites — almost impossible.[89]
In this context, one must question whether the issue of implied licences is appropriate for issues involving copyright.[90]
First, it is unclear that an implied licence could apply in the case of a deep link that circumvents the main page and the advertising placed on it. It could be argued that the owner of a website grants a licence to browse the site, but in the way the creator of the website intended and designed it. However, one commentator suggested that the argument of an implied licence is still tenable even in the event of linking to deep pages in a website.[91]
Secondly, the use of web linking agreements that explicitly state that permission is required can avoid the argument for an implied licence. Such web agreements are becoming more common, and the implied licence then cannot work against the clearly expressed will of the copyright owner, as agreed with the author of the linking site.
However, even the defenders of these kinds of agreements recognise that the suggestion of a contract being necessary to link to a website seems contradictory to the ethos of the internet, and suggest that, for normal links, these kinds of agreements are unnecessary. One can link without permission and without having to give notice to the copyright owner.
Web linking agreements, according to this view, should still be useful for embedded links and especially for frames, and as a precautionary measure taken by the operator of a commercial website that wants to be sure that it will not face liability for the links that it is providing.
In addition, some owners have attempted to negate implied licence by inserting “Terms of Use” that explicitly deny the existence of implied licence to link, but these disclaimers are often inconspicuous, and may be considered unenforceable.
Thirdly, the implied licence doctrine is an aspect of contract law, essentially an estoppel doctrine, and it does not fit well with the traditional copyright law, because such a factual contract would not seem to arise between strangers who do not have a previous relation, legal or de facto.
Finally, in the case of copyrighted materials posted on webpages without the consent or the knowledge of the owner, it is clear that this argument cannot work because the implied licence is based on the premise that the owner knew that his or her material would be available on the internet.
In terms of copyright law, fair dealing is a far more satisfactory solution. It is clear that some form of statutory amendment would be required to the New Zealand Copyright Act 1994 because to attempt to apply the fair dealing provisions of that legislation[92] to webpages may strain the language of the statute.
Under the fair use defence in the US there is no infringement if the use is fair, even if the use violates one of the copyright owner’s exclusive rights. Four factors are considered in determining whether a use is fair:
1. the purpose and character of the use, including whether such use is for a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.[93]
The purposes and character of linking are closely related to the purpose of the internet, which is to provide information freely to the public in an accessible manner. Where the nature of the linked page is commercial or non-fictional and where the linked page is a small and insubstantial part of the plaintiff’s work, in the absence of a commercial or profit-making use, browsing should qualify as fair use. As far as the fourth requirement is concerned, linking could be said to be an advantage.
In the context of the world wide web the link expands the potential market of the linked site, because more people are able to easily find and access the site. Even if accessing a website through a link does make a copy of the whole work, this factor does not have to be decisive in the majority of cases and fair use can be successfully invoked.
So far the issue of simple linking has been considered. It is clear that the cases outlined recognise that different considerations apply to deep linking and framing that involves the diversion past a normal entry point to a website (along with any notices, terms or conditions of use, advertising and the like) to material of value to the user, or, in the case of framing, the apparent appropriation of another user’s material and inclusion as part of another, unrelated site.
The cases on deep linking demonstrate that a deep link potentially prejudices the linked-to site by circumventing advertising material and possibly prejudicing the linked-to site’s income, especially if advertising revenue is based on the number of times the page containing the advertising is accessed. Although the objective in providing a deep link may be to provide relevant information (which is the major purpose of the internet) nevertheless there is an expectation on the part of a site owner that access to the site will be reached via a home or starting page.
However, given the nature of the internet as an information-disseminating medium, and the essentially “public nature” of information available on the internet, and the fact that it is potentially available for world wide distribution and access, and given that in essence a link is no more and no less than a signpost, it is suggested that it need not follow as a matter of course that a deep link should be seen as a copyright infringement. Rather, greater value should be placed on the availability of information than on the fact that access to that information has been other than through a home page. As additional factors, the person or organisation behind the linked-to site:
• knows the nature of the web and that the link is a means of access and navigation;
• is taking advantage of the tremendous reach that the web offers; and
• has available certain technological means of restricting access to parts of the site.[94]
Given the third factor, it would be a simple matter to establish copyright infringement if a person linking to the site used some sort of “hack” or “software solution” to gain access to the deep-linked material by circumventing the means employed to restrict access.
Another option is to place a higher burden of proof on a person alleging infringement by deep linking in terms either of standard of proof or of the criteria to be established to prove infringement. Among such criteria could be actual (as opposed to potential) damage or provable loss of revenue or patronage as an ingredient of the infringement rather than the quasi-strict liability copyright law approach that deems unauthorised copying to be infringement.
Framing creates another situation in terms of intellectual property. Framing is a function of software, having been introduced as a feature of Netscape 2. It is now widespread within browser software. Many sites require that for a user to access them, a frames-capable browser should be used. Unlike linking, however, framing is not a fundamental part of the architecture of the world wide web. In addition, framing is far closer to traditional print-based copyright theory than linking in that framing may give the impression that the web material framed in the window of site A belongs to and is a part of site A rather than in fact belonging to site B. In effect, framing without attribution is a clear appropriation of site B’s material and can be protected by ordinary copyright principles. To avoid such difficulties, many websites open a linked-to site in a completely new window, thus identifying the linked-to material by name and by URL.
12. The Threat to the Web
The challenging of links based on copyright theory raises a greater issue as far as the internet is concerned. This goes to the heart of the function of the world wide web, the architecture and environment of the internet and the way in which, if at all, such fundamental aspects of the new technology are going to be regulated or governed.
Linking is what gives the web its awesome power. It is an attraction for ordinary people who wish to obtain information quickly and easily without having to understand the mysteries of code or remember complex address parameters or details. Linking is an indispensable tool that allows internet users to benefit from information that is located on the web. To establish that a mere link or mere browsing infringes copyright would be the equivalent of killing the world wide web, which represents the internet to the majority of computer users.
Linking seems to have attracted the attention of copyright specialists because it provides a means by which potential infringements may take place by directing users to copyrighted material. Thus, although the link is merely what could be classified as an intermediate step in the process of potential infringement, it seems to have assumed a significance that goes beyond what it really is. Further, it gives copyright owners a convenient target — the owner of the linking site — rather than the ultimate consumer, and even then there may be some doubt as to whether there has in fact been an infringement by the mere accessing of a webpage without more.
Linking holds no mystery. A link is merely a line of code that allows a step to be taken. Tim Berners-Lee, who developed the world wide web at the European Organisation for Nuclear Research (CERN),[95] puts the matter as “the intention in the design of the web was that normal links should simply be references, with no implied meaning”.[96]
The contents of the linked document may contain meaning and often do but the link itself does not. A recommendation to go to a particular site followed by a link, or even the embedding of a hypertext reference (HREF) within the recommendation does not add any extra meaning to the link.
A useful analogy for a link is to treat it as a card index system in the library that directs a researcher or library user to a particular location within the shelves of the library. The library card carries no more information than is necessary to enable the user to satisfy him or her that the book is the one that is sought and to locate it.[97] A hypertext link does not even go this far. It only contains the information about the location of the information on the destination site and makes that site available to the computer user.
However, it is, as has already been stated, an essential part of the architecture of the internet. This then raises a question that relates to the way in which the law applies to the internet, and touches on an even deeper issue that is the purpose of law itself.
The purpose of the law is to regulate the behaviour of individuals within society. One of the areas that the law has been unable to regulate is the environment within which individuals operate. That environment is governed by what we may refer to as the “laws of nature” or the “laws of science”. It is, if you like, the architecture within which society operates.
Similarly with the internet — inherent within what has been called cyberspace is a fundamental architecture or system within which we may operate and without which the internet or parts of it cannot function. An example may be found in the TCP\IP protocol that allows different computers to communicate with one another. Another is the system of IP numbers that are assigned to machines on the internet. Although we may set rules for the assignation of IP numbers[98] the internet simply will not function without these two essential aspects of the internet environment or its architecture. This environment or architecture is not a part of nature such as is the real world environment. It is created by human beings. However, that architecture sets the metes and bounds of the internet or cyberspace and receives its expression in code.
The world wide web built on existing internet protocols and added another dimension to the internet. However, what the world wide web actually is and its limitations are governed by the code that makes it operate. Part of that system of operations is hypertext linking, activated in code by the term HREF. Linking cannot take place without the HREF expression. Thus linking is an essential part of the architecture and the environment of the world wide web. To attempt to limit or regulate its use is rather like a Judge trying to slow the growth of a tree by judicial decree.
Lest it is suggested that it is not the architecture that is being regulated but the way in which people behave — that is, utilise the architecture — we must return to first principles and see what the HREF expression does. Unlike a mechanical creation, which may be used for good or ill, HREF allows only one thing and that is a hypertext link — a means of locating a page and bringing it into a user’s computer. To attempt to legislate or regulate what is an essential part of the web does violence to the environment within which the internet user may expect to operate. Indeed, the most extreme view might be that for the purposes of ensuring that internet users have certainty in terms of the lawfulness of their activities within the environment, the law should not concern itself with issues of the use of basic and necessary parts of the internet by using copyright theory to limit the use of these fundamental operators. The real issue should be with the use that the ultimate user may make of copyrighted material. If that causes copyright owners a problem in terms of detection and enforcement so be it. Back-door methods should not be used which do violence to the internet environment and simultaneously to legal principle.
In a sense the code or the architecture of the internet limits the way in which the law can be applied to regulate or govern it. In a sense the code and the architecture that it provides imposes its own regulatory metes and bounds not only in terms of what may or may not be done, but in terms of the boundaries of any regulatory or governance system that may be imposed upon it by the law, either as pronounced by the Courts or by legislative bodies.
If, however, linking activity is going to be the subject of regulation under, say, principles of copyright, the effect upon the internet will be dramatic.[99]
First, the internet will cease to be the free information environment that it was originally conceived to be. Freedom of navigation for information on the internet will become restricted in the same way that “real space” is. The freedom that users enjoy to link to content on similar subjects whereby a collection of links on, say, copyright law are all brought together, may be compromised or indeed become impossible. Not only would the free information environment be restricted but the utility of the internet as a source of information would be hampered.
Secondly, the internet could become divided into a number of information “zones” of open and closed areas. Distinctions between sources of information may be made on a number of criteria, among them pricing considerations, the willingness of a user to provide information about himself or herself, the willingness of a user to accept additional information on products or services, whether the site is a commercial site or a non-commercial one and so on. In some respects this is already taking place. For example, when the New York Times Cyberlaw Journal existed online it was often linked to from legal sites. However, a visitor to that site for the first time was unable to access it until he or she registered, and that registration was specific to the particular machine. Thus, if the user wished to access the Cyberlaw Journal from another machine, the registration information (user name and password) had to be re-entered. The New York Times Cyberlaw Journal was free of charge, but the mechanism prevented casual access to the site by deep linking.
Other technological solutions may be available such as requiring a password to gain access, or building dynamic webpages that only appear when the user uses a certain program. There may be feasibility issues for commercial sites who would try to obtain as big a reach as possible that would mitigate this solution, although it may be satisfactory for non-commercial sites. The irony is that the complaints about deep linking arise mainly from commercial sites, whereas non-commercial sites are generally more attuned to the “information wants to be free” ethic that underpinned the early internet.
It is possible to program webpages to reject linking from unwelcome sources or users. In a sense this is a logical and acceptable solution, for it puts control of access to the site in the hands of the site owner. This enables the owner to obtain the exposure that is required while at the same time preventing unwelcome links, such as in the case of Havana House Cigars in New Zealand. Framing may also be prevented in that the frame may be “dissolved” thus enabling the user to see the entire page from its source and not as a part of another site.
There is no doubt that there will be further litigation about links and in the near future there will be some considered and possibly definitive solutions. However, those solutions will further obscure this complex area. Decisions emanating from the US will have to resolve apparent conflicts between the Digital Millennium Copyright Act and the Constitution of the US, in particular the First Amendment. With legislation in Australia in force another outcome may well be presented, for Australia has no constitutional equivalent to the US Constitution or its Amendments.[100]
Thus it is likely that there will be a jigsaw of rules and regulations limited by territorial jurisdictions and applicable in some areas and not in others. The casualties in the resolution of these conflicts will be the law, which, when territorially based will be unable to provide consistency and certainty for an environment that does not know borders, and tragically the internet itself.
13. Conclusion
There are those such as Goldsmith[101] who call for internet regulation and a system of governance. There are others, such as John Perry Barlow,[102] who see the internet as the last frontier for freedom, and who quail at any form of intrusion by the law.
It is necessary to remember that the internet is primarily a means of conveying information. It is not without reason that many emphasise the internet as an important component of the so-called “knowledge economy”. Issues of technology convergence and the use of the internet for business and commerce mean that necessarily the law has a place in the digital environment. In many cases existing legal rules govern these relationships. In some cases, new solutions will have to be devised. Information that is available in a book that can be borrowed from a public library should not be proscribed merely because that same information is available online and can be obtained by clicking on a hypertext link. By the same token, information available on the internet should not be proscribed merely because it is there, especially if it is legitimately available from another source.
What will require care is to ensure that the digital environment receives the same treatment as the “real world” and that restrictions and inhibitors on activities and relationships that are not present in the real world seem to become available in or intrude on the online environment.
[62] [2013] EWCA Civ 68
[63] [2012] VSC 533
[64] [2012] VSC 88
[65] [2009] EWHC 1765
[66] [2011] SCC 47
[67] H C Auckland, 19 January 1998, CP 344/97 Master Kennedy-Grant
[68] The domain name of which was the subject of litigation – see NZ Post v Leng [1999] 3 NZLR 219
[69] (1894) 38 SJ 234 (CA).
[70] (1891) 64 LT 797
[71] [2011] SCC 47
[72] By a majority decision comprising Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.
[73] At para [36]
[74] Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 18 October 2012 – Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB http://curia.europa.eu/juris/document/document.jsf?text=&docid=130286&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1258343 (last accessed 19 March 2013).
[75] The European Copyright Society is a year-old group of academics and scholars that it has said seek to “promote their views of the overall public interest”. The group’s opinion on the issues before the CJEU was formed by 17 academics from across Europe, including Professor Lionel Bently from Cambridge, Professor Graeme B Dinwoodie of Oxford University and Professor Martin Kretschmer, the director of CREATe at the University of Glasgow.
[76] Opinion on the reference to the CJEU in Case C-466/12 Svensson – 15 February 2013 http://www.ivir.nl/news/European_Copyright_Society_Opinion_on_Svensson.pdf (last accessed 19 March 2013).
[77] Ibid. paras [35 – 36].
[78] Ibid. para [6 (a) – (b)]. The argument is developed later in the submission by a careful analysis of CJEU cases on the notion of communication and the significance of transmission – see paras [23 – 26]
[79] Ibid. para [55].
[80] Case I ZR 259/00 (17 July 2003) [2005] ECDR (7) 67, 77,
[81] (2006) IIC 120 (27 January 2005)
[82] 487 F. 3d 701 (2007)
[83] Ibid. p. 717
[84] Ibid. p. 718
[85] Having said that it must be noted that Perfect 10 was a decision of the 9th Circuit whereas Reimerdes & Corley was a decision of the 2nd Circuit. The matter will only be definitively resolved by accord between the decisions of the Circuits or a decision of the Supreme Court of the United States.
[86] In Europe this exclusion was embodied in art 5.1 of the Proposal for a Directive on Copyright and Related Rights in the Information Society, approved 10 December 1997.
[87] 111 F Supp 2d 294 (SDNY 2000), 273 F 3d 429 (2d Cir NY 2001).
[88] 114 F2d 896, 239 F3d 1004.
[89] P Jakab “Framing Technology and Link Liability” Internet Law Symposium (1998) Pace Law Review 23–25; On contractual solutions see, “Weblinking agreements, Contracting Strategies and Model Provisions” (1997) Section of Business Law American Bar Association; M Luria “Controlling Web Advertising: Spamming, Linking, Framing and Privacy” (1997) 14/1 The Computer Lawyer, 10–22.
[90] Although it is far more apposite to patent law. Indeed, the defence of implied licence in the US is an affirmative one and it cannot automatically be asserted that it is available. In order to determine whether such an implied non-exclusive licence exists, every objective fact concerning the transaction should be examined to determine whether it supports such a finding. Several objective inquiries can be made in this regard, including an assessment of whether the delivery of the copyrighted material was without warning that its further use would constitute copyright infringement. See Edward A Cavazos and Coe F Miles, “Copyright on the WWW: Linking and Liability” 4 Richmond Jnl of Law and Technology (1997) para 40 and following http://law.richmond.edu/jolt/v4i2/index.html (last accessed 21 March 2013).
[91] Maureen O’Rourke, “Fencing Cyberspace: Drawing Borders in a Virtual World”, 82 Minn L Rev 609, 660.
[92] Part 3, ss 40–93.
[93] USCS 107.
[94] Special log-in, registration, provision of information for the payment of a fee or a technological way of ensuring that access to the “deep-linked” page is only possible by way of the entry page.
[95] http://public.web.cern.ch/Public/Welcome.html (last accessed 21 March 2013).
[96] Tim Berners-Lee, “Links and Law” http://www.w3.org./DesignIssues/LinkLaw (last accessed 21 March 2013).
[97] The analogy of a referencing system was used in Crookes v Newton [2011] SCC 47
[98] One of the functions of ICANN.
[99] The Copyright Amendment (Digital Agenda) Act 2000 (Australia) which substantially amends the Copyright Act 1968 provides that copyrighted subject-matter is not infringed by making a temporary reproduction or copy of the subject-matter as part of the technical process of making or receiving a communication, provided that the making of the communication is not an infringement of copyright (ss 43A and 111A). Although this substantially clarifies the position as far as incidental copying associated with online activity is concerned, the legislation remained silent on the issue of hyperlinks. There is no relevant Australian case law on the issue although an early draft of the Digital Agenda Bill suggested that one of the objects of the legislation was to relieve uncertainty as to whether practices such as internet browsing and hyperlinks violated the Copyright Act. However, the matter has been left to the Courts. See Maree Sainsbury, “The Copyright Act in the Digital Age” 11 Jnl Law and Information Science 182.
[100] For an example of conflicting outcomes between Australia and England see Sony Computer Entertainment v Owen [2002] WL 346974 (Ch D), [2002] EWHC 45 and Sony Computer Entertainment v Stevens (2002) FCA 906 (26 July 2002).
[101] “Against Cyberanarchy” 65 U Chicago LR 1205.
[102] “A Declaration of Independence of Cyberspace”, 8 February 1996, https://projects.eff.org/~barlow/Declaration-Final.html (last accessed 21 March 2013).
The IT Countrey Justice 