Linking on the Web: Hyperlinking, Deep Linking & Their Legal Risks

Introduction

Hyperlinking is the ability to click a piece of text or image and jump to another webpage, it is the fundamental connective tissue of the World Wide Web. Without links, the web would not be a “web” at all. But not all linking is legally equal. Some forms of linking present little risk; others raise thorny issues in copyright, trademark, contract, unfair competition, and intermediary liability law.

Types of Linking & Related Concepts

To analyze legal risk, one must first distinguish among various ways to link or refer to online content:

Each of these presents a different legal calculus. The mere presence of a link does not automatically make the linker legally liable; the facts, jurisdiction, and laws invoked matter.

Legal Theories Under Which Linking Might Be Challenged

Below are the main theoretical bases by which a plaintiff might try to hold a linker liable:

1. Copyright / Communication to the Public

• Core issue: Does linking (or embedding) amount to a “communication to the public” under copyright law?
• In many jurisdictions, a rightsholder has exclusive rights to reproduce, distribute, and communicate works to the public.
• If a link or embed causes the content to be displayed or made available in a way not intended or authorized by the owner, a court might treat it as a copyright infringement (especially embedding or inline linking).
• The doctrine of contributory liability or secondary liability may also be invoked: the linker aided, promoted or facilitated access to infringing content.

2. Trademark, Branding & Confusion

• Deep linking or framing may mislead users into thinking the content is part of the linker’s site (or that the site endorses or is affiliated with the target).
• This may constitute trademark dilution or false endorsement / passing off.

3. Unfair Competition / Free Riding

• If the linked site relies on monetizing page impressions (via advertising), deep links could “steal” advertising value.
• The linking party might be accused of unfair competition or misappropriation of traffic / goodwill.

4. Contract / Terms of Use

• Many websites impose terms of use or linking policies. If a site expressly prohibits deep linking (often in their terms), linking in violation of those terms might lead to a breach of contract claim (if the linker is bound).
• But courts tend to insist those terms be obvious and consented (e.g., “clickwrap” vs. hidden links).

5. Intermediary Liability

• In jurisdictions with liability-shield rules (like India’s IT Act / intermediary rules, or the U.S. DMCA), the linker (or the platform hosting it) may be liable if they don’t promptly remove or disable infringing content upon notification.
• The distinction between a “passive host” and an “active participant” is key.

Leading Case Law

Here is a curated tour of significant precedents (U.S., Europe, UK, Scotland, India) relevant to linking:

1. Scotland / UK – Shetland Times v. Wills

• In Shetland Times Ltd. v. Dr. Jonathan Wills & Others[1] (1996 / 1997), the defendant copied headlines from the plaintiff’s website and hyperlinked them to the plaintiff’s full articles, bypassing the plaintiff’s homepage (and its ads).
• The court granted an interim interdict (temporary injunction), finding a prima facie case that the copying of the headlines and the hyperlinking (bypassing the homepage) could infringe copyright (or related rights) by depriving the plaintiff of ad revenue.
• However, crucially, the court did not definitively rule that all hyperlinking or deep linking is unlawful just that in this factual scenario, a strong case was made.

2. U.S. – Ticketmaster v. Tickets.com

• In Ticketmaster Corp. v. Tickets.com, Inc.[2] (2000), the court held that deep linking itself did not constitute copyright infringement, because no copying of the content was involved: the link merely directed users to existing content on the target site.
• The court also observed that a URL is not copyrightable, and the linking to a publicly accessible page is more analogous to referencing a location in a library (not copying the text).
• Thus, the decision reaffirmed that linking, in principle, is legal so long as there’s no unauthorized duplication or deceptive misrepresentation.

3. European Union / CJEU

• The CJEU has held that linking to infringing material can amount to copyright infringement when the linker “knows or ought to know” the content is unauthorized.
• More broadly, EU law frames such acts under “communication to the public” under the InfoSoc Directive.
• The EU jurisprudence has gradually evolved to require a context-sensitive approach (considering knowledge, remuneration, purpose).

4. Indian / Regional

• The Indian legal landscape for linking is still underdeveloped; the Copyright Act, 1957 does not expressly deal with linking, deep linking, or embedding.
• Some scholars argue that linking could infringe the “communication to the public” right under Section 14 (especially via embedding or inline linking).
• Indian intermediary liability rules (under the Information Technology Act and its rules) may impose takedown obligations on platforms hosting links.
• A few Indian decisions have addressed deep linking: e.g. in 2006, Delhi High Court reportedly prohibited deep linking (by Bixee to Naukri) (cited in general surveys).
• Also, Indian commentary often points to the gap (“loopholes”) in Indian law for deep linking, framing, embedding, and calls for legislative reform.

How to Think About Risk of Linking in Practice

Given the mixed jurisprudence, whether a particular link is legally risky depends on multiple factual factors. Below are key considerations and safe practices:

1. Public vs. Private / Access Controls

• If the target content is publicly accessible without restriction, linking is less risky.
• But if the content is behind paywalls, login walls, or protected by access restrictions, linking (especially deep linking) may be akin to bypassing access controls.

2. Permission / License

• Where possible, obtaining permission or a linking license from the content owner mitigates risk.
• Some content providers explicitly state in their Terms of Use or robots.txt whether linking, embedding, or framing is permitted.

3. Attribution & Clarity

• Always make clear who owns the content (i.e. label that the content is on “SourceSite.com”).
• Avoid any confusion that the content is part of your own editorial material.

4. No Copying / Caching

• Do not cache or store full copies of the content unless you have rights to do so.
• Avoid presenting the content in a format that suggests you host it.

5. Avoiding Bypass of Monetization

• Be cautious if your link bypasses the target’s revenue model (e.g. you skip their ads or subscription prompts).
• This is especially sensitive when your site benefits commercially from such bypassing.

6. Terms of Use Compliance

• Review the target site’s Terms of Use / linking policy. If they expressly forbid deep linking or framing, linking may run a contractual risk (if an enforceable contract binds you).
• But courts often require such terms to be clearly disclosed, with actual assent.

7. Knowledge & Control

• If you know (or should know) the target link leads to infringing content, linking may expose you to contributory or secondary liability.
• For platforms that host user-provided links, a policy of prompt takedown on notice is critical.

[1] 1997 FSR 604.

[2] Case No. 99-CV-07654 [United States District Court for the Central District of California, Civil Action Number 97-3055DPP].