Is Linking Exposing Your Company to Liability?
Can one of the most common practices on the Internet subject your company to liability? Surprisingly, the answer is yes. Case law from the United States and abroad continues to demonstrate that engaging in the familiar practice of providing links to third-party Web sites can expose your company to liability in a number of different ways.
Linking allows a user to move from one Web site to another or from different areas within the same Web site by clicking on a " link," which may be represented as words, graphics or a combination of both. Links are an essential component of the Internet, and the practice of linking has enabled the Net' s interconnectivity and growth. Yet, you may be placing your company at risk by providing links to third-party sites.
In some cases the practice of linking may lead to claims of intellectual property infringement. These claims may include direct copyright infringement by the end user as a form of unauthorized reproduction or contributory and vicarious infringement by the linking party. Linking may also lead to claims of unfair competition and give rise to liability under the Lanham Act and state unfair competition laws. Additionally, linking may also give rise to allegations of other unfair trade practices including false advertising.
Although linking may create liability risks, many companies are reluctant to cease the practice since it allows for user mobility and is such a popular Web site feature. Fortunately, while the termination of linking practices may not be a viable option, there are a number of ways to reduce the likelihood of liability.
First, consider entering into a linking agreement. Generally, there are three types: mutual, one-way and cross-linking or " co-branding." Mutual linking agreements are based on good will, and their purpose is often promotional or informational. Usually, revenues are not generated from such agreements. One-way linking agreements are typically used in arrangements with affiliates or associates whereby brand-name companies provide branded links to affiliates for visitor referrals in exchange for commissions. Finally, in a cross-linking arrangement, each company licenses the use of its trademark for use on a shared Web page and/or for use on the other party' s Web page, thereby allowing each party to bring users to the other party. Although linking agreements are a relatively new feature, they are rapidly becoming the strategy of choice for many risk managers.
Despite the existence of these agreements, many links on the Internet exist without formal agreements. In situations where it is not possible or desirable to have a linking agreement, there are still ways to reduce the risk of liability. For instance, when linking to a third-party site, care should be taken to link to the third party' s home page and not to any of the site's internal pages. Internal or " deep" linking is more controversial than simply providing home page links. Deep linking can be problematic for a number of reasons. Such linking may reduce visitor' s ability to navigate through the third party' s Web site and may cause visitors to bypass important disclaimers, revenue-generating advertising and Web site policies. Linking to a home page, as opposed to internal portions of a site, may reduce the likelihood that a third party will challenge the link to its site.
Additionally, companies engaging in linking should include a prominent legal disclaimer on all pages of their site from which links are provided. An appropriately drafted disclaimer may help reduce the risk that the linked-to information on the third-party site would be perceived as being a part of the initial site from which the link was made.
Furthermore, all links to third-party sites should open to a new " pop-up" window. This can help to avoid the perception that the linked-to site is actually part of the initial site. This also may make it easier for third-party site visitors to return to the initial site. Instead of clicking on the " back" icon until they return to the initial site, visitors will be able to simply close down the pop-up window containing the linked-to site.
Recent developments in this area emphasize the importance of monitoring linking practices in light of the evolving law. Obviously, the safest course of action would be to avoid the practice of linking altogether. However, abstaining from this popular practice might not be practical in today' s highly competitive online world. As such, consideration should be given to implementing some of the risk prevention strategies outlined above. Doing so may help to make linking a less risky endeavor.
This article, which may be considered advertising in certain jurisdictions, does not purport to give legal advice pertaining to any particular situation and creates no attorney-client relationship. Readers should seek professional legal advice concerning any particular situation they face.
Jacqueline Klosek practices in Goodwin Procter' s Intellectual Property/Technology Practice Area. She can be reached at firstname.lastname@example.org.
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