Euro-Legal

News about legal information related to Information Technology from European directives, and pan-European legal requirements and regulations.

Dangers of Deep Linking

What is a deep link?
A deep link is a hot link to a subsidiary page of another Web site that is not its home page.

Why is this a problem?
Linking in this way may bypass registration procedures or advertising messages, depriving its publisher of value or infringe copyright.

Businesses are investing a lot of time and money into Web site development. A link to a business-critical deep page which bypasses revenue gathering pages or makes use of a page from another site which has a particular value, or was costly to produce, can have serious commercial consequences.

A deep link can create a commercially sensitive intrusion, for example by way of infringement of copyright, infringement of database rights, trade mark infringement or "passing off". Some of the best cases of deep linking come from Europe, for example Stepstone v OFIR. In this case the courts in Germany granted an injunction to prohibit a link to the claimant's web site by a rival recruitment agency which enabled it to display specific job vacancies from the claimant's site to its own site. The court granted the injunction, but the ruling was not solely based on the issue of deep linking, but rather that the process of creating the link infringed database rights which the claimant was entitled to protect. A recent case in the UK on similar lines was that of William Hill v British Racing Board. William Hill, the betting firm, had taken data derived from the Board's database to use on its own Web site. The judgment in this case stated specifically that database rights would protect virtually all collections of data in searchable form. That decision is of major importance in its relation to deep linking, as most links tend to be to pages containing useful data.

However, it is often assumed that there is an implied consent to link to a home page, but contradictory evidence exists across Europe. In Germany, case law supports the general principles of implied consent, but takes the view that deep linking is not permissible on the basis that it infringes some other right, for instance copyright. But in Denmark, music copyright owners have obtained compensation from individuals who created links from their own home pages to unlawful music files published on unrelated Web sites. In that case the infringement was regarded as an unlicensed public performance. Using a disclaimer, or linking policy statement, will not provide wholesale immunity. Whilst the Web does provide us with a free exchange of information and ideas, it is protected from being a veritable feast for digital pirates.

by Heather Weaver, CLRC
Tel: +44 1 235 446151
E-mail: H.Weaver@rl.ac.uk