Own or run a Web site? Use deep links? If so, you could well be liable for damage claims from those that you link to.
A deep link is a hyper link to anything other than the front page of another site.
A recent Danish court case found news service Newsbooster.com was illegally linking directly to news articles on the sites of newspaper publishers. Newsbooster removed all links to the newspapers` reports, all the while giving dire warnings for the future of search engines and other technology that rely on links.
Legal experts say a similar ruling is quite possible in SA on any of a number of grounds, and any site linking to anything other than the front page of any other site without written permission is playing with fire.
"In SA, if you link to another site, you must have the permission of the target site," says Reinhardt Buys, head of specialist IT firm Buys Incorporated. "Most people would be happy to have a link, but one or two may not."
While Buys recommends written permission, he says an e-mail from the target site could do in most cases.
There are several problems with deep links, problems to which lawyers say technologists could well be oblivious but which could lead to a claim.
One is copyright infringement, one of the mainstays of the Danish case.
"Deep linking can appear to be a claim that the content on somebody else`s site is your own," says John Giles of legal firm Harty Rushmere McPherson. According to Buys, the same argument can be used for trademark infringement.
Unlawful competition is another area where a claim could succeed.
Wim Mostert of the Deloitte & Touche legal division says links between the sites of competitors could lead to a case similar to the Newsbooster claim, but stresses that the details of each case would play a large role.
However, proving a breach of contract should be no problem, especially when the Electronic Communications and Transactions Bill becomes law soon and makes people liable for the actions of their software.
"We advise clients to ensure that the terms and conditions on their site asserts a prohibition against any form of deep linking," says Mostert. With such a prohibition in place, any visitor to the site, whether human or automated Web-crawler, is bound by it, and linking to anything but the home page would be a breach that could lead to a civil claim.
Search engines may have a slight advantage over other sites, some lawyers believe, allowing a search engine`s spiders or Web-crawlers access to a site. Alternatively, sites providing the traditional robots.txt file could imply permission to link. However, with no test case in SA yet and opinion divided, they advise caution.
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