1. What Is hypertext linking?
A hypertext link (Link) is an element in a webpage which links to another webpage either within the same website or to a third party website. Websites often provide Links to third-party websites. A Link may link to the home or index page of a third party website (containing advertising and information about the site owner) or may bypass the homepage and directly link to a specific page within the third-party site (Deep Link).
2. What is framing?
A frame is a window inside a web browser. A webpage browser can be divided into several frames, each displaying different content (Framing). A user may navigate from page to page or site to site in one frame while the content of another frame (eg an index) remains the same. Websites often use Framing to aid navigation for users of the website.
3. Misleading and deceptive conduct and passing off
Trade practices legislation prohibits misleading or deceptive conduct and implies warranties into any contract for the provision of goods or services in trade or commerce. You may be liable for misleading or deceptive conduct where a consumer (broadly defined) is or is likely to be mislead or deceived by a statement on your website, or where it becomes unclear when the consumer connects from your website to another via a Link or Frame on your website.
You may be subject to a common law action of passing off if by the use of Linking and Framing on your website, the goods or services offered on your website are passed off as the goods or services of another party. See Fact Sheet on Trade Marks, Domain Names and Passing Off.
4. Other legal liability arising from Linking and Framing
By inserting a Link to, or Framing a third party website you may be liable for republishing any material on the linked website which:
(a) infringes copyright, trademark rights or moral rights; or
(b) constitutes objectionable content or defamation.
See Screen Scraping for potential legal liability arising from the aggregation of content from many sites into one site.(1)
5. Managing legal liability arising from Linking and Framing on your website
(a) Do not frame third-party content within your existing web site frame unless you have express permission from the third party.
(b) Consider providing a mechanism for the user to break free of any Frame on your website.
(c) Place a disclaimer or acknowledgment on your website clearly identifying to the user that they are accessing information from another site. For example, place an acknowledgment of the source of the Linked or Framed content and a link to the homepage of the source near the Link or Frame.
(d) Consider if or how other websites may Link to your website and whether you want to Link to other websites. For example, do you wish other websites to link directly to content within your website bypassing your homepage and any advertising and contact details that you may have? Bypassing your homepage may lead to the risk that users of your website will not be aware of any terms and conditions of use.
(e) Generally there is an implied right to link to the index or homepage of a third-party website but this may not extend to Deep Linking. Given current legal uncertainty in this area, you should seek authorisation from any websites you wish to Link to (including Deep Linking if permitted). This is both a courtesy and may lead to the other site linking to your website.
(f) You should include in the terms and conditions of website use a provision that:
* limits your liability for any material on a Linked or Framed third party website that infringes copyright, trademark rights or moral rights or constitutes objectionable content or defamation;
* requires your permission before a third party website can Link or Frame your website; and
* requires website owners wishing to Link or Frame your website to give you an indemnity against loss arising from that arrangement.
(g) Consider designing your website so a warning appears displaying the above disclaimers before the user can activate the link. If required, your website development agreement with the developer should give effect to this functionality requirement. See Website Development Agreement.
Other relevant Articles on this site:
Terms and conditions of website
Trade practices and consumer protection
Other relevant Fact Sheets:
Copyright
Defamation
Moral Rights
Online Content Regulation
Trade Marks, Domain Names and Passing Off
End Notes
(1) See generally, EBAY Inc v Bidders Edge Inc (US District Court, San Jose, 26 May 2000, Judge Whyte);
Register.com v Verio Inc (US District Court, New York City, 11 December 2000, Judge Jones)