Tech Werks(Technology Law news)

Hyperlinking and Deep-linking
The recent United States (“US”) court decision in the case of eBay Inc v Bidders Edge Inc [No. 5 : 99CV21200 (N.D. Cal. Dec 10, 1999)] (“the eBay case”), has raised some interesting legal questions surrounding hyperlinking and deep-linking. A hyperlink or hypertext link allows a user of the Internet to access a web site from the web page they have currently accessed.

A hyperlink is incorporated into a web page as a highlighted or differently coloured and distinguishable word, phrase or image. For example, if a user is currently browsing the Amazon home page at www.amazon.com there will be a number of highlighted or differently phrased words or phrases which, when clicked on by the user, will “link” or transfer the user directly to another home page. Accordingly, it is unnecessary for a user to type in the “address” or Uniform Resource Locator (“URL”) of the web page it wishes to access.

Deep-linking is a means whereby one Internet site posts a link to a web page, other than the home page, of another web site. In other words, by clicking on a link posted on a particular web site, the user will bypass the home page of another website (which is usually the page which contains all the advertisements and promotions of such web site) and access directly a web page several layers deeper than the home page.

There have already been a number of cases (mostly US) surrounding the legality of deep-linking. The two most pertinent cases of these are the recent Ticketmaster and eBay cases, which are discussed below.

The Ticketmaster Case
Deep-Linking and Copyright Infringement

The recent US case of Ticketmaster Corp v Tickets.com Inc [No. 2 : 99CV7654 (C.D. Cal. July 23, 1999)] concerned two online sellers of tickets for sporting events and concerts. Ticketmaster brought an action against Tickets.com Inc (“Tickets”) to prevent Tickets from using hyperlinks to Ticketmaster’s web pages. The dispute arose as a result of Ticketmaster having exclusive arrangements in respect of events marketed on its web site, tickets for which are not available other than through Ticketmaster. In these circumstances, Tickets is not able to sell tickets to events directly and Tickets directs the user to the Ticketmaster site where such tickets can be purchased by deep-linking to the web page of Ticketmaster where such tickets are available for purchase. The home page of Ticketmaster is thus by-passed, giving rise to Ticketmaster’s action. However, the Tickets web page does display a statement that although certain tickets could not be purchased from Tickets, clicking on a particular link would take the user to a site where the tickets could be purchased (being a web page of Ticketmaster).

Although the case is still in its early stages, the single judge of the Federal District Court of California stated that such deep-linking did not constitute copyright infringement as Tickets did not actually copy any portion of the Ticketmaster site but transferred the user directly to the relevant Ticketmaster web page. Further, the Court held that the act of deep-linking did not itself constitute unfair competition as Tickets did not mislead users as to the source of where the tickets could be purchased.

The Ticketmaster case also dealt with the enforceability of web site terms and conditions. One of the allegations of Ticketmaster was that Tickets contravened Ticketmasters web site terms and conditions, which prohibited deep-linking by unauthorised third parties. The Court held that because the terms and conditions were placed at the bottom of the Ticketmaster web site and that users were not required to consent to such terms and conditions (such as by clicking on an “I accept” button), such terms and conditions did not create a legally binding contract between Ticketmaster and the user.

The eBay Case
Deep-linking and Trespass

From the Ticketmaster case, it would seem that the practice of deep-linking (in the circumstances stated in the Ticketmaster case) will not be disallowed by the US courts. Yet, in the more recent eBay case the Court approached unlawful access of an Internet site differently.

In the eBay case, Bidders Edge Inc. (“Bidders Edge”), which collects information about online auctions and directs users to the best deal was interdicted from accessing eBay Inc’s (“eBay”) web site to collect data about items for sale on eBay. eBay stated that Bidders Edge conduct infringed their right of privacy and that eBay has the fundamental right to stop unauthorised and harmful access to its site. The Court ruled that the use of automated search programmes (known as “bots”) to collect information from web sites amounted to trespassing.

What is interesting to note from the eBay case is that the order given by the judge expanded the law governing trespassing on personal property to the Internet.

South African Law
Current opinion as to whether hyperlinking and deep-linking should or should not be prohibited is divided. Many support hyperlinking on the basis that this increases traffic to a site and that it is in accordance with the entire purpose of the Internet, being an open and free environment for the sharing of and access to information.

Critics of deep-linking say that this diverts visitors from a site’s front or home page, thus diminishing exposure to advertising, disclaimers or navigation appearing on the home page. Further, this allows a third party to unlawfully benefit from the effort and time put into a web site by the proprietor of the web site.

In South Africa, the legality of hyperlinking and deep-linking has not yet been tested by our courts. In general, current South African legislation regulates a physical environment as opposed to a virtual environment. For example, the Trespass Act No 6 of 1959 regulates the entry or presence upon land or in buildings and has not been interpreted to apply to an online environment. There is currently no legislation in South Africa preventing, prohibiting or regulating linking and deep-linking. Like in the Ticketmaster and eBay cases, our courts will therefore in all likelihood apply relevant common law principles to disputes about the online environment.

In the absence of any decided cases on how those principles will apply, the safest precaution against unauthorised linking to web pages is to clearly state this in web site terms and conditions which should be clearly displayed on the web site. Unfortunately that precaution is not guaranteed to succeed as, in order to obtain a court order against a third party hyperlinking or deep-linking to a web page, it must be proved that such third party accepted and has accordingly breached such terms and conditions, which may not be easy to prove.

Banner Advertising
Banner advertising occurs where the Internet service provider (“ISP”) hosting a web site displays a large advertisement for goods, products or services at the top or on the side of the computer screen image of the web page.

Disputes may arise where the banner advertises a competing, distasteful or unlawful product or service.

As with linking and deep-linking, there is no South African case law or legislation regulating such conduct by an ISP. The right to advertise on a web page should be regulated contractually by way of the contract with the ISP, and if advertising is to be allowed the contract should specify, inter alia, the permitted manner of advertising.

E-Commerce Debate: Update
During July 1999, the Department of Communications published the “e-commerce Debate”, a discussion paper in respect of various e-commerce issues facing South Africa such as security of data transmissions, on-line contracts, taxation and intellectual property rights.

The Department of Communications has stated that following the “e-commerce Debate”, a Green Paper on e-commerce should be finalised by August 2000. This will be followed by a white paper in January 2001 and hopefully much needed legislation regulating e-commerce by April 2001.