What's in a link? English law issues with linking online

Linking is a hot topic at the moment, in particular with the NLA's ongoing dispute with Meltwater over its news aggregation services and Tugendhat J's consideration of linking in a defamation context in July 2010 in Islam Expo Ltd v The Spectator (1828) Limited ¹.

Linking between webpages is so common that most people who place links probably give little thought to the legal risks. However, linking is potentially a trap for the unwary in terms of legal liability.

Might a person be legally liable for linking to:

• copyright material?
• defamatory material?
• other unlawful material?
• a webpage that itself links to unlawful material?

In this topical issue, we only address liability arising from the link itself and not, for example, liability for content surrounding or in the link (e.g. copied headlines), or caching.

When could linking amount to copyright infringement?

In general, a link to a copyright work that is freely available on the internet with the copyright owner's consent is unlikely to amount to copyright infringement. In our opinion, the main areas of risk are linking to a work:

1. that is not freely available to everyone and, by linking to it, the linker is making it available to a "new public" – for example, where the linker makes subscriber-only content available to non-subscribers by circumventing a paywall, or where the link is to a consolidated version of a work (e.g. a film) that would otherwise only be accessible through many different files (each containing e.g. a part of the film) that would be very time-consuming for an internet user to locate, access and consolidate (see Twentieth Century Fox v Newzbin ²); or
2. where the linker is authorising ³ internet users to do an act with the linked work to which the copyright owner has not expressly or impliedly consented – for example, authorising internet users to copy an infringing / pirate copy of a work, or commercially exploit a work where this is prohibited in the linked website's terms of use. The linker's knowledge and intention, and the context of the link (e.g. any enticements or disclaimers), would probably be relevant in determining liability.

When could linking give rise to liability for defamation?

Our view is that linking can potentially give rise to liability for defamation. The key question would be whether the link amounts to publication of the defamatory material, which would require the linker to have the necessary degree of "knowing involvement" in the publication. In assessing this, the linker's knowledge and intention in placing the link, and the context of the link, would probably be relevant.

In practice, we think a linker is more likely to be liable where it is clear that the linker has seen the defamatory content and is actively encouraging internet users to look at it – e.g. "I can't believe what sports players get up to. Read for the latest about John Smith!" [underlined text links to defamatory article].

At the other end of the scale, a linker could potentially lack the necessary knowing involvement if the link is a mere bibliographic reference in a footnote, without any enticement to internet users to click on the link, or if the linker has inadvertently linked to some defamatory material without having seen or read it (e.g. because the material is contained in user comments which appeared after the link was placed). Similarly, a link generated by a purely automated search engine system without any direct human involvement would not amount to publication (see Metropolitan v Google ⁴).

When could a linker be liable for linking to other types of unlawful material?

In our view, a linker could, in certain circumstances, be liable for linking to other types of unlawful material, such as content that breaches privacy or confidentiality, is in contempt of court, incites racial or religious hatred, is obscene, or encourages / induces terrorism. The analysis of when a linker could be held liable / guilty is likely to be the same as for defamation.

Could a linker be liable for linking to a webpage that links to unlawful material?

It seems reasonable to assume that a "secondary" link (i.e. a normal link on the linked webpage) would usually be too remote for the linker to be liable. The linker would have no control over such secondary links. Further, the linker's intention would generally be to point internet users to the linked webpage, not to websites linked from that page (to which the linker could have linked directly if it had wanted). It appears unlikely that a linker would be held liable for, for example, publishing content when that content is not immediately accessible from its own webpage.

Conclusion

In summary, while linking is generally unlikely to infringe copyright except in a few specific situations, linking to defamatory, private or other unlawful material could potentially expose the linker to legal liability.

This topical issue is a summary of the conclusions from a longer article written by Timothy Pinto and Mark Dennis.

Click here to view a PDF of the full article.

Lawyers Timothy Pinto, Mark Dennis

^{1 [2010] EWHC 2011 (QB) 
2 [2010] EWHC 608 (Ch) 
3 Under s.16(2) Copyright, Designs and Patents Act 1988 
4 [2009] EWHC 1765 (QB)}