Linking to other Web sites
Fri, 3 Oct 1997 20:24:31 +1000
Linking to other sites or "linking licences", as it's been come to be
known, has been the subject of both debate and litigation (the litigation,
as you might have guessed, has occurred in the USA). While there are the
seeds that might sustain an action, under Australian law it is unlikely
that an owner of a site has a right to prohibit people linking to their
site. However, these things always depend on the actual facts and
circumstances so don't consider any of this as legal advice.
Thumbnail sketch of Australian law:
The main arguments that have been raised in support of linking licences
are: copyright, trade marks and passing off - type (including misleading or
deceptive conduct) arguments.
The first category of argument, basically that there subsists copyright in
the address that forms a link, is the hardest to sustain - because there is
unlikely to be sufficient skill involved in the creation of the address for
it to enjoy copyright protection (a more convoluted argument in relation to
the actual content at the target of a link is also available, but also
probably not sustainable).
The second, that the use of a link is a trademark usage prohibited by the
Trade Marks Act is also not an easy one to prove as the trademark must be
applied to goods, or used in relation to services. It has more force in
the United States however, as they have a some dilution doctrines that are
not present here.
Passing off arguments have more weight as they may merely require that a
person implies an association that is not actually present. So, for
example, where a target site is framed in such a way as to imply
endorsement by the target site, the target site would probably be able to
I've written a paper on the topic which is in the process of being put on
our web site (www.gtlaw.com.au) check for it towards the end of next week
if you're interested.
ps: There are conspiracy theories that Microsoft et al are litigating this
issue in the US against small or pliable targets in order to establish
precedents supporting the need for linking licences.
Gilbert & Tobin Lawyers
This email contains information of a general nature only and does not
consitute legal advice.
This email is solely for the use of the addressee and may contain
information which is privileged or confidential.
If you receive this email in error please notify the sender by return email
cc: email@example.com (bcc: Brendan Scott/Gilbert & Tobin/61)
Subject: Re:Linking to other Web sites
At 1:36 PM 3/10/97, Paul Chandler wrote:
>I wonder if any "linkers" have thoughts on the following matters?
>>I've had it suggested to me that if you are setting up a web page
>>containing a list of "Links to useful sites" you should obtain
>>permission from each site you link to.
1. If you have to seek permission each time you link there is no point in
the technology. Its the same as seeking permission to cite a printed work.
2. If they object to people linking to them why did they ever use the
technology in the first place? They musn't want anybody to redirect people
to them. I for one am perfectly happy not to give links to people so silly
as to object. More, I am happy to advise people not to visit their site as
that appears to be what they wish.
mailto:firstname.lastname@example.org | Voice/Fax
mailto:email@example.com | +61 2-6288-0959
Ningaui Pty Ltd, GPO Box 1680, Canberra City, ACT 2601
Visiting Fellow, Department of Computer Science, FEIT
Australian National University