Internet Marketing Legal Issues: Linking

INTRODUCTION

One of the basic mechanisms of the World Wide Web is the use of links from the "Linking Page" to an-other Web page that is frequently referred to as the "Linked Page". Linking (or "hyperlinking" as it is sometimes known) is a powerful tool for enabling the Internet user to quickly shift to related content sources. The "link" is usually highlighted in a different color than other content on the Linking Page and acts as an "active" or "hot" zone on the Linking Page. The link may be represented by text or images and permits the viewer on the Linking Page to immediately gain access to the Linked Page simply by clicking on the text or image. This eliminates the need to type in the full and sometimes lengthy address of the Linked Page since the text or image that replaces the underlying code for the link acts as the address of the Linked Page. When the user activates the link, the user's Web browser accesses the Linked Page and dis-plays the Linked Page to the user.

The ease of linking however brings with it legal risks. A Web site owner should be aware that their are a number of legal issues raised by including links on your Web site to Web sites owned by third parties and that many of these legal issues have still not been resolved. These legal issues may include copyright and trademark infringement, unfair competition, commercial misappropriation, defamation and the right of publicity.

LEGAL ISSUES INVOLVING LINKING

It has been the usual practice for Web site owners to have linked their Web pages with other Web pages without requesting or obtaining permission from the owner of the Linked Page. The Web culture viewed such links as having "significant" value to the user and to the respective owners of both the Linking Page and Linked Page. However, the increased commercial importance of Web sites may be altering the tradi-tional Web culture of permitting links without permission.

The disputes involving linking have generally been of three types. (1) The Linking Page uses copyright or trademark protected text or images from the Linked Page. Examples of this would include using an image of the "Coca Cola" bottle or using Nike's phrase "Just Do It" or using a photograph of an artist's artwork as the "hot" zone on the Linking Page that when clicked on by the user accessed Coca Cola's, Nike's or the artist's Web page. (2) The Linking Page does not link to the Linked Page's "Home Page" but instead links to an internal page of that Web site. (3) The Linking Page links to Web sites that carry defamatory material or display and distribute infringing copies of copyrighted works.

GUIDELINES FOR LINKING TO OTHER WEB SITES

1. Links to third party Web sites should be as simple as possible.

It is suggested that you do not use more than plain-text names for the "hot" zone to link to another Web page. You should not use a third party's logos, product designs, slogans or trademarks as the "hot" zone to their Web page since this could lead viewers of your Web page to believe that the Linking Page en-dorses or is affiliated with the Linking Page. In the event you believe you must use as the hot zone, an image such as the Coca-Cola bottle and not the plain-text name Coca-Cola, then to preclude any possible liability it would be advisable to obtain permission from the Coca-Cola Corporation.

It is also advisable not to describe the Web sites to which you provide links. This will prevent the owner of the Linked Page from alleging that your description of the Linked Page was inaccurate or misleading.

2. Link directly to the Home Page and not to the internal pages of Web Sites.

Controversy involving links to the internal pages of a Web site has revolved around two major issues. The first concerns user contacts as it relates to "advertising revenue" and the second involves bypassing the Web site's "policies and terms and conditions" governing usage of the Web site that are often are only accessible from the Home Page.

Advertising that is only available on a Web site's Home Page is bypassed when a link is not to the Home Page but to an internal page. This may have a harmful effect on the linked to Web site's potential adver-tising revenue as such revenue is usually based on the number of "hits" to the page that contains advertising.

One lawsuit, that has recently been settled, involved the Ticketmaster Corporation and the Microsoft Cor-poration. Ticketmaster filed suit against Microsoft for improperly using the Ticketmaster name and logo on its, "Seattle Sidewalk" Web page. Ticketmaster alleged that Microsoft's actions resulted in the dilution of Ticketmaster's trademarks, misrepresentation, unfair competition, unfair business practices, and mislead-ing statements.

Microsoft's use of "deep" hyperlinks permitted a user of the Seattle Sidewalk Web site to bypass the poli-cies and service information provided on Ticketmaster's homepage and allowed the user to go directly to a Ticketmaster internal Web page to purchase tickets for upcoming events. If the Microsoft links from its Seattle Sidewalk Web page had been links to the Ticketmaster homepage instead of to one of the internal pages within the Ticketmaster Web site Ticketmaster's policies and service information could not have been bypassed by the user. Ticketmaster alleged that deep linking, permitting the user to bypass Ticket-master's Home Page, enabled Microsoft to benefit from Ticketmaster's trademarks and name.

It was also interesting to note that before the suit began, the companies were in discussions regarding links from the Sidewalk Web site to the Ticketmaster site; suggesting Microsoft was concerned about the legal implications of such linking. However, once the negotiations failed Microsoft unilaterally established deep links to the Ticketmaster site.

It may therefore be advisable, to preclude any potential liability, that the Web site desiring to link to an in-ternal page of another Web site consider contacting the owner of the Linked Page before initiating such link and obtaining permission from the owner of the Linked Page to link to an internal page and not the Home Page.

3. Your Web Site should have a "Link Disclaimer".

Every Web site should have a "Terms and Conditions" statement that governs the usage of its Web site. This Statement should include among other information the Web site's policies with regard to the com-pany's copyrighted content and trademarks that are included on its Web site, its "privacy" policy, guidelines for third party Web sites that may want to link to your Web site and a Link Disclaimer that spe-cifically addresses the issue of links to and from other Web pages.

In the case where your Web site will be the Linked Page you may want to establish guidelines that specifi-cally address the issues of (1) the use of your logos, designs, slogans or trademarks, (2) links to internal pages, (3) under what circumstances you will not permit links to your Web site, and (4) under what cir-cumstances your permission is required before linking to your Web site.

When your Web site is the Linked Page your "Link Disclaimer" should address the issues that your Web site cannot control the content of third party owned web sites that link to your Web site and inform the user of your Web site that if they visit your Web site through a link from a third party Web site and find the content of that Web site inappropriate or offensive that they should contact you so that you may evalu-ate this matter. On the other hand, when your Web site is the "Linking Page" you should notify your Web site users that they may find links from your Web site to third party owned Web sites that contain content that they may find to be of interest. You might also want to inform your Web site users that you initially visited these third party Web sites before linking to them but that they must understand that you do not control their content and that such content frequently changes.

CONCLUSION

Linking from your Web site to third party Web sites can be a powerful marketing tool for your company. Linking creates added value for your Web site in that your users will return to your Web site not only for its content but also for the knowledge that you will link them to other valuable information that can be found on the World Wide Web. Is there a better way by which you can obtain repeat and loyal users of your Web site? One important guideline to always remember is that you should only "link to other Web sites in the same manner that you would like them to link to your Web site".