The Legality of Links

One benefit of the Web is the ability to hyperlink, to allow readers to “click here” and land in a different place. It’s a common practice, one widely used in email newsletters that aggregate content from a variety of sources and deliver readers a brief description of that content with a link to the original story.

Deep linking (define), or sending readers directly to the item you’re referencing, is considered a marketing best practice. This is partially just because you can do it online; it also provides a better experience for the reader, minimizing the clicks they need to get to their destination.

Yet some legal professionals have begun to question the practice, based on a string of cases dating back to 1996. They advise their clients that email newsletters should be cautious about deep linking to third-party Web sites; some organizations have considered banning the practice altogether.

These legal opinions are based on analysis of a number of cases, many European. In 1996, The “Shetland Times” sued the “Shetland News” under the U.K. Copyright, Designs and Patents Act of 1988. The “Shetland News” was deep linking to content within the “Shetland Times'” Web site, allowing visitors to bypass the home page and (here’s the important part) the ads that appeared on the home page. After the ruling, the two papers struck a deal allowing the “Shetland News” to link to the “Shetland Times'” home page, but not to interior pages of the site.

Four years later, Ticketmaster sued Tickets.com over a similar issue. That case also ended in an agreement that Tickets.com would only link to Ticketmaster’s home page. Then, in 2002, in what’s probably the highest profile case, the Danish Newspaper Publishers’ Association sued content aggregator Newsbooster on similar grounds; a court ordered Newsbooster to stop posting links to the Web sites of the Danish newspapers represented in the case.

Should you stop deep linking to third-party content? Some things to consider.

It’s Not Illegal in the U.S.

The court addressing the Ticketmaster case stated “hyperlinking itself does not involve a violation of the Copyright Act.” Linking a reader to another Web site is like using a “library’s card index to get reference to particular items… faster and more efficiently.”

So Long as It’s Not Deceptive or Disruptive

This should be an easy standard for any legitimate email marketer to adhere to. Deceptive practices include such things as:

  • Implying an association when none exists with the third-party site you’re linking to

  • Linking to content you know (or should know) infringes another organization’s copyright.

Overseas, Laws Are Different

Many countries have stronger deep linking regulations, most notably the EU Database Directive, which protects factual information created by organizations and which has been used to prohibit deep linking to third-party Web sites.

Laws Are Evolving

A new lawsuit filed in Washington, DC, by Agence France-Presse claims a search engine that reproduces its headlines is guilty of copyright infringement. The claim was part of an early court decision in the “Shetland Times” case. Also considered risky: including additional text or small (thumbnail) photographs from the third-party site along with the link.

Bottom Line

If you’re concerned deep linking puts your company in jeopardy, speak with your attorneys. They’re your best source of advice in this matter. I’m not a lawyer, but here are some actions being taken by companies to protect themselves:

  • Think twice about deep linking to Web sites based outside the U.S.

  • Keep the headline and any included text with the link to a minimum.
  • Don’t include any logos or photographs, even small thumbnails, from the Web site you link to.
  • Don’t link to third-party content if there’s reason to believe it may infringe on another party’s copyright.

If you’re considering linking to a third-party Web site, search its privacy, permission, and other policies to see if it mentions linking or deep linking. If it does, comply with its policies. If it doesn’t, you have a choice: You can deep-link into its site, assuming no policy means it’s not an issue. Or, you can contact the site and request permission in writing to link or deep-link to it.

Whatever you do, stay tuned. Agence France-Presse and other lawsuits may affect not just your email newsletter but also how large aggregators such as Google News and Yahoo News present third-party content.

Until next time,

Jeanne

Want more email marketing information? ClickZ E-Mail Reference is an archive of all our email columns, organized by topic.

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