Publishers’ association of south africa

Deep linking from one web site to another

Deep linking refers to a hyperlink, programmed on one web site, that allows an Internet user to be transferred from that web site to a page on another web site that is not the home page of the target site. Although many would consider deep-linking as an integral part of the Internet, court cases in the USA and the EU have showed that there are various legal and financial risks associated with deep linking.

Deep linking has received attention in many foreign court cases:

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  Mainpost v NewsClub (Germany) – the court held that an electronic newspaper archive was a database in terms of EU law and that a search or link to that database constituted database infringement. NewsClub had to pay damages of US$250 000.
  

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  Kelly v Arriba (USA) – deep linking associated with framing the target site is an infringement of the target site’s copyright.
  

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  Ticketmaster v Microsoft (USA) – the case was settled and Ticketmaster accepted links a) directed at its home page or b) with prior permission and a linking agreement between the parties.
  

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  Ticketmaster v Tickets.com (USA) – Judge Hubb confirmed that deep linking by itself is not unfair competition. The issue of copyright was not addressed.
  

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  Danish Newspaper Publishers Association v Newsbooster (Denmark) - Newsbooster searched online newspapers and made their own newsletter made up of links to various Danish newspapers. The court ordered Newsbooster to cease this practice because the links infringed the newspaper’s online database and competed with subscription services of the newspapers.
  

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  Mainpost v Newsclub (Germany) – The court rules that a link to a newspaper’s archive infringed the newspaper’s database.
  

In South Africa no legislation or court cases directly addressed the practice of deep linking. To provide a clear opinion on deep linking in South Africa, it is necessary to consult the Copyright Act of 1978, international court cases, international legislation and generally accepted best practice. We therefore come to the conclusion that deep-linking will be legal in South Africa, subject to the following conditions:

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  The link must clearly indicate that the user will be transferred to another web site, for example:
  

Click here to access the article in Business Day: www.businessday.co.za/aaaaa

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  The target web page should not be framed;
  

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  The target site should not prohibit linking in their online “use agreement” or “terms and condition”; and
  

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  A collection of links should not be copied from the target site.
  

We suggest that the legislator should urgently address the legality of deep linking in South Africa.

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