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INTERNET LAW
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INTERNET LAW THE LEGAL CLASSIFICATION OF WEBSITES AND LIABILITY FOR HYPERTEXT LINKS Philip Auld
To date there has been no English law authority on the legal classification of websites. In order to understand the protection that may be afforded to websites it is necessary to look to other jurisdictions that may influence an English Court. This article examines the established difficulties of identifying a satisfactory legal status for websites and the recent European approach of classifying a website as a database.
The main potential classifications of a website are: • Cable programme • Database • Collection of Literary and Artistic Works • Goods Until recently, the legal classification of a website under the English jurisdiction has been thought to follow the Scottish 1 case of Shetland Times v Wills. In this case Lord Hamilton suggested in his interim interdict that a website may be a ‘cable programme’ under the Copyright, Designs and Patents Act 1988. As such, a hypertext link to a website might constitute infringement of copyright in a cable programme; however, another theory has surfaced more recently in Europe.This suggests that a website is, through its method of construction, a database,and that a hypertext link can therefore infringe a database right where such a database right exists.On a closer analysis this theory appears to work well under English law. Another theory is that a hypertext link could make the provider of the link vicariously liable for copyright infringement of the individual literary and artistic works that are contained within a website. Finally, recent cases in the United States have suggested that an Internet spider (a computer program which visits websites and reads their information in order to create entries for a search engine index), potentially analogous to a hypertext link, could be a trespass to goods.This article explores each of these potential classifications, and the cases in which they have been argued.
CABLE PROGRAMME 2
In the case of Shetland Times v Wills, Lord Hamilton stated that 3 he had not been presented with detailed technical material on the issue of whether or not a website was a cable programme 4 under Section 7 of the Act. However,based on the evidence and arguments presented he was of the opinion that there was a prima facie case that it was a cable programme.He therefore felt it was arguable that a hypertext link to a website was an infringement under Section 20.5 By putting the link on the defendant’s site (itself ‘a cable programme service’) the claimant’s website/ cable programme was included in the defendant’s ‘service’ enabling the transmission of the claimant’s website to the public
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without consent.This ‘inclusion’ without consent was arguably the infringing act. This is a rather academic argument which stretches the language of both Section 7 and Section 20 and has never been properly tested in an English court. Nor is it clear what the conclusion of the Scottish Courts would have been had this case reached a full trial or if Lord Hamilton had received detail technical submissions as to the technology on which the Internet operates.
DATABASE 6
The database right stems from the Database Directive which was implemented in the United Kingdom by the Copyright & 7 Rights in Databases Regulations 1997. It was introduced to deal with the problem of trying to obtain copyright protection for collections of information. Although not originally contemplated when the legislation was conceived, a website, due to the way in which it is constructed, does come within the definition of a database.A website is stored on a computer as several individual data files (themselves often copyright works) which are stored in a systematic way to allow the formation of each individual Web 8 page.The Copyright & Rights in Databases Regulations 1997 9 amended the Copyright, Designs and Patents Act 1988 to define a database as: … a collection of independent works, data or other materials which: (a) are arranged in a systematic or methodical way, and 10 (b) are individually accessible by electronic or other means.
A database right is a proprietary right and subsists in a database if there has been a substantial investment in obtain11 ing, verifying or presenting the contents of the database. A substantial investment is defined as meaning in terms of qual12 ity or quantity or a combination of both. Therefore, most websites could be classified as databases due to their organized structure and nature.As such a database right in a website would therefore be infringed if, without the consent of the owner, a third party extracts or re-utilizes all or 13 a substantial part of the contents of the database. This view was supported by a recent unreported case in Germany that
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allowed Stepstone, the online recruitment company, to obtain 14 an injunction against one of its rivals. 15 Under the Regulations, it is not possible to prevent users from extracting or re-utilizing insubstantial parts of a public database (i.e. a website). However, utilization of a ‘substantial part’ can be achieved through a repeated or systematic 16 extraction of insubstantial parts. Interestingly, re-utilization is defined as making those contents available to the public by 17 any means. This would clearly cover making the information available to the public through a different website. This was confirmed in the recent case of British 18 Horseracing Board v William Hill. Mr Justice Laddie delivered 19 the first English law interpretation on the Regulations and the ruling has not suggested that a website would not be capable of classification as database.The ruling reaffirmed the establishment of database rights in English law and highlighted the far-reaching implications for businesses. The case concerned the British Horseracing Board’s database of data relating to horseracing, which the Board obtained, verified and maintained as the governing authority for the British horseracing industry. William Hill had established a website to allow the public to place bets electronically or support telephone bets. The website consisted of an insubstantial selection of information that originated from the Board’s database. William Hill argued that the information on its website was identical to the publicly available sources or may have been obtained directly from various racecourses instead of from the Board’s database.The British Horseracing Board contended that it owned the database right in the Board’s database and that William Hill was making unlicensed use of the data in the Board’s database. Mr Justice Laddie held that a ‘database’ under the Directive has a very wide meaning covering virtually all collections of data in a searchable form. It was held that William Hill’s extraction of data from a third party data feed from the Board’s database and placing it on its own computers were unlicensed acts of extracting substantial parts of the Board’s database.Although the extraction was not substantial in quantity, Mr Justice Laddie found that it was qualitatively substantial because the small amount of data that was extracted daily was the most commercially valuable data. In addition, it was found that the transmission of the data from the Board’s database, through the William Hill website, to the public were prohibited re-utilizations. Mr Justice Laddie also held that,although a new 15-year period of protection from a database right recommenced each time there was “any substantial change, qualitatively and quantitative20 ly, to the contents of the database”. William Hill’s repeated extractions and re-utilizations of insubstantial parts were from the contents of one database rather than the taking of insubstantial parts from different, though inter-related, databases. A dynamic, constantly changing database is therefore to be considered as a single database and hence repeated insubstantial extractions from a dynamic database may together be sufficient to constitute a substantial extraction from one database. This confirmation is particularly important as many of the most valuable databases are those that are under constant revision. Interestingly, William Hill also presented a proposed solu21 tion to Mr Justice Laddie whereby particular changes would be made to its website. Firstly, instead of the time of the race being stated, the number of the race at the meeting would be identified. Secondly, instead of the horses being identified by
name,they could be identified by their number.It was held that the manipulation of data from the Board’s database so as to present the same information in a different manner would have no impact on the issue of extraction. Furthermore, Mr Justice Laddie could not see how a modified method of presentation of substantially the same facts could avoid infringement by reutilization either.As long as substantially the same information is made available on the website, the same acts of extraction and re-utilization will have taken place. William Hill has appealed to the Office of Fair Trading to defend its right to use the information contained on the Board’s 22 database. In addition,William Hill is believed to be considering appealing to the Court of Appeal.The basis for such an appeal is not known, however one likely possibility would be an argument that the Board are abusing a dominant position. In Radio 23 Telefis Eireann and another v European Commission the European Court of Justice held that a refusal to license the information which constituted the Irish television schedules was an abuse of a dominant position under Article 86 of the Treaty of Rome.The same principle could be applied to the information held on the Board’s database. Although if the decision of Mr Justice Laddie was overturned on this basis, it is unlikely to weaken the argument that a hypertext link can infringe a database right where such a right exists in a website.
COLLECTION OF LITERARY AND ARTISTIC WORKS A website usually contains literary and artistic works which are protected by copyright.A temporary electronic copy of these works will be made by any person who clicks on the hypertext link.By including such a hypertext link on a website,the owner of a website may be vicariously liable for procuring the users of the link to make a temporary copy of a copyright work if it is an infringing copy (i.e. is made without licence or consent). This argument is unlikely to be successful as, by setting up a website, the owner of the copyright works must be taken to have granted an implied licence at least for such a temporary copy to be made by those wishing to view it. (This is often the argument presented by non-commercial Internet users who believe that all information on the Internet should be accessible and free to link to.) It may be,however,that such an implied licence only covers the home page and inner pages of a website when reached via the home page or another authorized route; accessing pages directly without passing through the home page, so called ‘deep-linking’, arguably is not covered by an implied licence. In addition, any implied licence will also be able to be revoked at any time by the website owner.
GOODS The hardware computer systems that store the individual computer data files that make up a website are pieces of tangible personal property. This property is controlled by electronic impulses. In order to access a website, such electronic impulses are sent by the person wishing to access the site to the computer system upon which the website is stored.If such impulses obstruct the computer system’s ability to carry out its basic functions, do physical harm to the computer system or possibly even if they amount to ‘handling’it without the website owner’s consent, this may amount trespass to goods.
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In the absence of damage it is unclear whether any deliberate, direct or unauthorized contact with the computer system qualifies as a trespass. However, in the House of Lords 24 case of IRC v Rossminster Limited, Lord Diplock stated, obiter:“the act of handling a man’s goods without his permis25 sion is prima facie tortious”. The difficulty with this argument is the idea of an implied licence (as discussed earlier) and the issue of caching (the temporary electronic copying of websites) by service providers. This argument would only be successful if the Court were to hold that the licence only covered access ‘by the front door’ and thereby other means of entry (i.e. via deep links) was trespass. In addition, many websites are cached by Internet Service Providers to enable faster access to Web content and therefore it is rare for an end user to view the original site on the server where it originates; it is more often a copy that is accessed.A further difficulty is that access by users via a website link is unlikely to cause the computer system any harm or obstruct it from carrying out its function;at most it will amount to unintentional ‘handling’ without consent. Despite the apparent flaws in the argument, it has been successfully used in the US. In the case of ebay Inc v Builders 26 Edge the use of Internet spiders (a computer program which visits websites and reads their information in order to create entries for a search engine index) by the defendant was held to be a trespass to ebay’s goods.The reasoning was that the frequent and continual accessing of ebay’s site by the spiders for the purposes of obtaining information to be included on the defendant’s site (and the likelihood that others would start to do the same should the defendant’s acts not be restrained) would use up so much of the ebay computer system’s capacity as to prevent it from fulfilling its basic function properly. 27 In the US Ticket Master v Tickets.com case, this argument was also considered worthy of serious consideration. However, because the Judge was not convinced there would be a sufficient obstruction, on the facts of this case, to the function of the computer system by the defendant’s spiders, he did not grant an interim injunction to prevent it. Deep linking is different from the use of spiders because it will not be the provider of the hypertext link gaining access ‘through the back door’, but those clicking on the link.Accordingly any liability will have to be vicarious. Further, such access is likely to be less frequent and less burdensome than the use of spiders.
CONCLUSION In conclusion, it appears that under the current legal classifications available to websites, a database is the most appropriate classification and perhaps requires the least extension to English law, particularly as a method of protecting a website’s content. Classifying a website as a database also works particularly well when trying to prevent deep-linking. Both the Shetland Times case and the Stepstone case involved deep-linking. In the Shetland Times case, the link went straight to the relevant articles, bypassing the site owner’s homepage.Therefore, it was not obvious to a user that they had moved from one newspaper to another. In the Stepstone case, the website concerned was apparently using a link to Stepstone’s online job advertisements to substantiate a claim about the quantity of jobs available through its own website. In addition, the decision of 28 Mr Justice Laddie in British Horseracing Board v William Hill is a strong affirmation of the database right in English law. The
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ruling should be a reminder to all those individuals and businesses, particularly those involved with the Internet, to ensure that they possess all necessary rights and licences to the data that they use.No matter how insignificant the data may seem to be, it may still be sufficient to infringe a database right. Ideally, prior written consent should therefore be acquired from the owners of all websites to which a website wishes to link and a disclaimer should be included in a website to state that, by linking to a third party’s website, there is no endorsement of that site, that it is controlled by a third party and that no liability is accepted for the content of that site. In addition, when linking to third party sites, care needs to be taken to ensure that there is no confusion as to on whose website the information is contained. In particular it is much better to link through the relevant homepage of the website to which you are linking rather than going straight to the relevant page.This will avoid any allegation that a user could be confused about who is providing the content. When seeking to protect the content of websites, practical alternatives should not be ignored. There are technical solutions that can prevent hypertext linking to individual pages on a website. Access to websites and individual pages can be controlled through passwords, usernames or both. This will of course mean that each user of the website will require a username or password, but in the case of particularly sensitive information where hypertext linking needs to be prevented, such methods are a viable option. Philip Auld, Solicitor,Wragge & Co.
FOOTNOTES 1
1997 FSR 604. 1997 FSR 604. 3 1997 FSR 604 at 608. 4 Copyright, Designs and Patents Act 1988 c.48. 5 Ibid. 6 Council Directive No. 96/9/EC of 11 March 1996 on the legal protection of databases. 7 SI 1997/3032. 8 SI 1997/3032. 9 1988 c.48. 10 s.6 The Copyright and Rights in Databases Regulations 1997 SI 1997/3032. 11 s.13(1) SI 1997/3032. 12 s.12(1) SI 1997/3032. 13 ss.16(1) and (2) SI 1997/3032. 14 Financial Times, 17 January 2001. 15 The Copyright and Rights in Databases Regulations 1997 SI 1997/3032. 16 s.16(2) SI 1997/3032. 17 s.12(1) SI 1997/3032. 18 [2001] All ER (D) 111. 19 The Copyright and Rights in Databases Regulations 1997 SI 1997/3032. 20 s.17(3) SI 1997/3032. 21 [2001] All ER (D) 111 at para 77. 22 The Independent, 25 February 2001. 23 [1995] All ER (EC) 416. 24 [1980] All ER 80. 25 [1980] All ER 80 at 93. 26 100 F. Supp. 2d 1058 (N.D. Cal. 2000). 27 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. 2000). 28 [2001] All ER (D) 111. 2
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INTERNET LAW THE LEGAL CLASSIFICATION OF WEBSITES AND LIABILITY FOR HYPERTEXT LINKS Philip Auld
To date there has been no English law authority on the legal classification of websites. In order to understand the protection that may be afforded to websites it is necessary to look to other jurisdictions that may influence an English Court. This article examines the established difficulties of identifying a satisfactory legal status for websites and the recent European approach of classifying a website as a database.
The main potential classifications of a website are: • Cable programme • Database • Collection of Literary and Artistic Works • Goods Until recently, the legal classification of a website under the English jurisdiction has been thought to follow the Scottish 1 case of Shetland Times v Wills. In this case Lord Hamilton suggested in his interim interdict that a website may be a ‘cable programme’ under the Copyright, Designs and Patents Act 1988. As such, a hypertext link to a website might constitute infringement of copyright in a cable programme; however, another theory has surfaced more recently in Europe.This suggests that a website is, through its method of construction, a database,and that a hypertext link can therefore infringe a database right where such a database right exists.On a closer analysis this theory appears to work well under English law. Another theory is that a hypertext link could make the provider of the link vicariously liable for copyright infringement of the individual literary and artistic works that are contained within a website. Finally, recent cases in the United States have suggested that an Internet spider (a computer program which visits websites and reads their information in order to create entries for a search engine index), potentially analogous to a hypertext link, could be a trespass to goods.This article explores each of these potential classifications, and the cases in which they have been argued.
CABLE PROGRAMME 2
In the case of Shetland Times v Wills, Lord Hamilton stated that 3 he had not been presented with detailed technical material on the issue of whether or not a website was a cable programme 4 under Section 7 of the Act. However,based on the evidence and arguments presented he was of the opinion that there was a prima facie case that it was a cable programme.He therefore felt it was arguable that a hypertext link to a website was an infringement under Section 20.5 By putting the link on the defendant’s site (itself ‘a cable programme service’) the claimant’s website/ cable programme was included in the defendant’s ‘service’ enabling the transmission of the claimant’s website to the public
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without consent.This ‘inclusion’ without consent was arguably the infringing act. This is a rather academic argument which stretches the language of both Section 7 and Section 20 and has never been properly tested in an English court. Nor is it clear what the conclusion of the Scottish Courts would have been had this case reached a full trial or if Lord Hamilton had received detail technical submissions as to the technology on which the Internet operates.
DATABASE 6
The database right stems from the Database Directive which was implemented in the United Kingdom by the Copyright & 7 Rights in Databases Regulations 1997. It was introduced to deal with the problem of trying to obtain copyright protection for collections of information. Although not originally contemplated when the legislation was conceived, a website, due to the way in which it is constructed, does come within the definition of a database.A website is stored on a computer as several individual data files (themselves often copyright works) which are stored in a systematic way to allow the formation of each individual Web 8 page.The Copyright & Rights in Databases Regulations 1997 9 amended the Copyright, Designs and Patents Act 1988 to define a database as: … a collection of independent works, data or other materials which: (a) are arranged in a systematic or methodical way, and 10 (b) are individually accessible by electronic or other means.
A database right is a proprietary right and subsists in a database if there has been a substantial investment in obtain11 ing, verifying or presenting the contents of the database. A substantial investment is defined as meaning in terms of qual12 ity or quantity or a combination of both. Therefore, most websites could be classified as databases due to their organized structure and nature.As such a database right in a website would therefore be infringed if, without the consent of the owner, a third party extracts or re-utilizes all or 13 a substantial part of the contents of the database. This view was supported by a recent unreported case in Germany that
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allowed Stepstone, the online recruitment company, to obtain 14 an injunction against one of its rivals. 15 Under the Regulations, it is not possible to prevent users from extracting or re-utilizing insubstantial parts of a public database (i.e. a website). However, utilization of a ‘substantial part’ can be achieved through a repeated or systematic 16 extraction of insubstantial parts. Interestingly, re-utilization is defined as making those contents available to the public by 17 any means. This would clearly cover making the information available to the public through a different website. This was confirmed in the recent case of British 18 Horseracing Board v William Hill. Mr Justice Laddie delivered 19 the first English law interpretation on the Regulations and the ruling has not suggested that a website would not be capable of classification as database.The ruling reaffirmed the establishment of database rights in English law and highlighted the far-reaching implications for businesses. The case concerned the British Horseracing Board’s database of data relating to horseracing, which the Board obtained, verified and maintained as the governing authority for the British horseracing industry. William Hill had established a website to allow the public to place bets electronically or support telephone bets. The website consisted of an insubstantial selection of information that originated from the Board’s database. William Hill argued that the information on its website was identical to the publicly available sources or may have been obtained directly from various racecourses instead of from the Board’s database.The British Horseracing Board contended that it owned the database right in the Board’s database and that William Hill was making unlicensed use of the data in the Board’s database. Mr Justice Laddie held that a ‘database’ under the Directive has a very wide meaning covering virtually all collections of data in a searchable form. It was held that William Hill’s extraction of data from a third party data feed from the Board’s database and placing it on its own computers were unlicensed acts of extracting substantial parts of the Board’s database.Although the extraction was not substantial in quantity, Mr Justice Laddie found that it was qualitatively substantial because the small amount of data that was extracted daily was the most commercially valuable data. In addition, it was found that the transmission of the data from the Board’s database, through the William Hill website, to the public were prohibited re-utilizations. Mr Justice Laddie also held that,although a new 15-year period of protection from a database right recommenced each time there was “any substantial change, qualitatively and quantitative20 ly, to the contents of the database”. William Hill’s repeated extractions and re-utilizations of insubstantial parts were from the contents of one database rather than the taking of insubstantial parts from different, though inter-related, databases. A dynamic, constantly changing database is therefore to be considered as a single database and hence repeated insubstantial extractions from a dynamic database may together be sufficient to constitute a substantial extraction from one database. This confirmation is particularly important as many of the most valuable databases are those that are under constant revision. Interestingly, William Hill also presented a proposed solu21 tion to Mr Justice Laddie whereby particular changes would be made to its website. Firstly, instead of the time of the race being stated, the number of the race at the meeting would be identified. Secondly, instead of the horses being identified by
name,they could be identified by their number.It was held that the manipulation of data from the Board’s database so as to present the same information in a different manner would have no impact on the issue of extraction. Furthermore, Mr Justice Laddie could not see how a modified method of presentation of substantially the same facts could avoid infringement by reutilization either.As long as substantially the same information is made available on the website, the same acts of extraction and re-utilization will have taken place. William Hill has appealed to the Office of Fair Trading to defend its right to use the information contained on the Board’s 22 database. In addition,William Hill is believed to be considering appealing to the Court of Appeal.The basis for such an appeal is not known, however one likely possibility would be an argument that the Board are abusing a dominant position. In Radio 23 Telefis Eireann and another v European Commission the European Court of Justice held that a refusal to license the information which constituted the Irish television schedules was an abuse of a dominant position under Article 86 of the Treaty of Rome.The same principle could be applied to the information held on the Board’s database. Although if the decision of Mr Justice Laddie was overturned on this basis, it is unlikely to weaken the argument that a hypertext link can infringe a database right where such a right exists in a website.
COLLECTION OF LITERARY AND ARTISTIC WORKS A website usually contains literary and artistic works which are protected by copyright.A temporary electronic copy of these works will be made by any person who clicks on the hypertext link.By including such a hypertext link on a website,the owner of a website may be vicariously liable for procuring the users of the link to make a temporary copy of a copyright work if it is an infringing copy (i.e. is made without licence or consent). This argument is unlikely to be successful as, by setting up a website, the owner of the copyright works must be taken to have granted an implied licence at least for such a temporary copy to be made by those wishing to view it. (This is often the argument presented by non-commercial Internet users who believe that all information on the Internet should be accessible and free to link to.) It may be,however,that such an implied licence only covers the home page and inner pages of a website when reached via the home page or another authorized route; accessing pages directly without passing through the home page, so called ‘deep-linking’, arguably is not covered by an implied licence. In addition, any implied licence will also be able to be revoked at any time by the website owner.
GOODS The hardware computer systems that store the individual computer data files that make up a website are pieces of tangible personal property. This property is controlled by electronic impulses. In order to access a website, such electronic impulses are sent by the person wishing to access the site to the computer system upon which the website is stored.If such impulses obstruct the computer system’s ability to carry out its basic functions, do physical harm to the computer system or possibly even if they amount to ‘handling’it without the website owner’s consent, this may amount trespass to goods.
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In the absence of damage it is unclear whether any deliberate, direct or unauthorized contact with the computer system qualifies as a trespass. However, in the House of Lords 24 case of IRC v Rossminster Limited, Lord Diplock stated, obiter:“the act of handling a man’s goods without his permis25 sion is prima facie tortious”. The difficulty with this argument is the idea of an implied licence (as discussed earlier) and the issue of caching (the temporary electronic copying of websites) by service providers. This argument would only be successful if the Court were to hold that the licence only covered access ‘by the front door’ and thereby other means of entry (i.e. via deep links) was trespass. In addition, many websites are cached by Internet Service Providers to enable faster access to Web content and therefore it is rare for an end user to view the original site on the server where it originates; it is more often a copy that is accessed.A further difficulty is that access by users via a website link is unlikely to cause the computer system any harm or obstruct it from carrying out its function;at most it will amount to unintentional ‘handling’ without consent. Despite the apparent flaws in the argument, it has been successfully used in the US. In the case of ebay Inc v Builders 26 Edge the use of Internet spiders (a computer program which visits websites and reads their information in order to create entries for a search engine index) by the defendant was held to be a trespass to ebay’s goods.The reasoning was that the frequent and continual accessing of ebay’s site by the spiders for the purposes of obtaining information to be included on the defendant’s site (and the likelihood that others would start to do the same should the defendant’s acts not be restrained) would use up so much of the ebay computer system’s capacity as to prevent it from fulfilling its basic function properly. 27 In the US Ticket Master v Tickets.com case, this argument was also considered worthy of serious consideration. However, because the Judge was not convinced there would be a sufficient obstruction, on the facts of this case, to the function of the computer system by the defendant’s spiders, he did not grant an interim injunction to prevent it. Deep linking is different from the use of spiders because it will not be the provider of the hypertext link gaining access ‘through the back door’, but those clicking on the link.Accordingly any liability will have to be vicarious. Further, such access is likely to be less frequent and less burdensome than the use of spiders.
CONCLUSION In conclusion, it appears that under the current legal classifications available to websites, a database is the most appropriate classification and perhaps requires the least extension to English law, particularly as a method of protecting a website’s content. Classifying a website as a database also works particularly well when trying to prevent deep-linking. Both the Shetland Times case and the Stepstone case involved deep-linking. In the Shetland Times case, the link went straight to the relevant articles, bypassing the site owner’s homepage.Therefore, it was not obvious to a user that they had moved from one newspaper to another. In the Stepstone case, the website concerned was apparently using a link to Stepstone’s online job advertisements to substantiate a claim about the quantity of jobs available through its own website. In addition, the decision of 28 Mr Justice Laddie in British Horseracing Board v William Hill is a strong affirmation of the database right in English law. The
256
ruling should be a reminder to all those individuals and businesses, particularly those involved with the Internet, to ensure that they possess all necessary rights and licences to the data that they use.No matter how insignificant the data may seem to be, it may still be sufficient to infringe a database right. Ideally, prior written consent should therefore be acquired from the owners of all websites to which a website wishes to link and a disclaimer should be included in a website to state that, by linking to a third party’s website, there is no endorsement of that site, that it is controlled by a third party and that no liability is accepted for the content of that site. In addition, when linking to third party sites, care needs to be taken to ensure that there is no confusion as to on whose website the information is contained. In particular it is much better to link through the relevant homepage of the website to which you are linking rather than going straight to the relevant page.This will avoid any allegation that a user could be confused about who is providing the content. When seeking to protect the content of websites, practical alternatives should not be ignored. There are technical solutions that can prevent hypertext linking to individual pages on a website. Access to websites and individual pages can be controlled through passwords, usernames or both. This will of course mean that each user of the website will require a username or password, but in the case of particularly sensitive information where hypertext linking needs to be prevented, such methods are a viable option. Philip Auld, Solicitor,Wragge & Co.
FOOTNOTES 1
1997 FSR 604. 1997 FSR 604. 3 1997 FSR 604 at 608. 4 Copyright, Designs and Patents Act 1988 c.48. 5 Ibid. 6 Council Directive No. 96/9/EC of 11 March 1996 on the legal protection of databases. 7 SI 1997/3032. 8 SI 1997/3032. 9 1988 c.48. 10 s.6 The Copyright and Rights in Databases Regulations 1997 SI 1997/3032. 11 s.13(1) SI 1997/3032. 12 s.12(1) SI 1997/3032. 13 ss.16(1) and (2) SI 1997/3032. 14 Financial Times, 17 January 2001. 15 The Copyright and Rights in Databases Regulations 1997 SI 1997/3032. 16 s.16(2) SI 1997/3032. 17 s.12(1) SI 1997/3032. 18 [2001] All ER (D) 111. 19 The Copyright and Rights in Databases Regulations 1997 SI 1997/3032. 20 s.17(3) SI 1997/3032. 21 [2001] All ER (D) 111 at para 77. 22 The Independent, 25 February 2001. 23 [1995] All ER (EC) 416. 24 [1980] All ER 80. 25 [1980] All ER 80 at 93. 26 100 F. Supp. 2d 1058 (N.D. Cal. 2000). 27 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. 2000). 28 [2001] All ER (D) 111. 2