Is the Internet a cable programme service? Is a hyperlink a cable programme?

A writ recently issued in Hong Kong alleges that a website is a cable programme service. The writ also appears to be alleging that hyperlinks on the defendant's site amount to an inclusion of the plaintiff's cable programme in a cable programme service provided by the defendant (i.e. the defendant's website). This is reminiscent of the 1996 case of Shetland Times Ltd v Wills, which first suggested that the Internet is a cable programme.

Rather than rehearsing the arguments as to whether or not the Internet is a cable programme, this article will consider the causes of action that might be used to stop unauthorised linking.

Before considering the different causes of action that might be used, a reminder of the findings in the Shetland Times case would be useful. The argument put in Shetland Times was that the Internet falls within the definition of a cable programme service, and that content posted on the Internet is therefore a cable programme. Specifically, in that case the plaintiff alleged, amongst other things, that headlines from the plaintiff's online newspaper (which were used by the defendant as hyperlinks from the defendant's site to the plaintiff's site) were cable programmes, and that the defendant incorporated those cable programmes into its own cable programme service (i.e. its website), thereby infringing copyright. The presiding judge agreed and granted an interlocutory interdict.

Does it matter if the Internet is a cable programme?

There were two limbs to the cable programme argument in the Shetland Times case. The first limb was that the plaintiff's website was a cable programme service and therefore the items included in it (including the headlines) were cable programmes. The second limb was that by using those headlines (i.e. part of the plaintiff's cable programme) on its own cable programme service (i.e. its website) it had infringed copyright by including a work (namely a cable programme) in a cable programme service. The point is that the defendant allegedly copied material from the plaintiff's website (i.e. the headlines) on its own site. This was straight copyright infringement by copying (as was in fact alleged as well) and therefore there was no need to rely on the cable programme argument.

The central issue is that even if the argument that the Internet is a cable programme service is right, then the link must be a work copied from the plaintiff's site for its inclusion in the defendant's site to infringe. If a work has been copied from the plaintiff's site, then it would be copyright infringement by copying, and the cable programme argument would not need to be run. By contrast, if the link was simply the words "Click here to go to another site" and these words were an original creation not taken from the plaintiff's site, then there would be no infringement by copying or by inclusion of a work in a cable programme service.

Are there other causes of action to prevent unauthorised links?

The Hong Kong case also pleads passing-off and in certain circumstances this can be a convincing argument. Assuming that the requisite goodwill and damage can be established in a plaintiff's website, it may be possible to show that an unauthorised link would amount to a misrepresentation. Depending on how the link is made, it may be possible to argue that users of the defendant's site would assume that the link to the defendant's site is authorised by the plaintiff or that the defendant's site is in some way associated with the plaintiff. This is most clear in a framing case where the link draws the plaintiff's site (or part of it) into a frame on the defendant's site. The difficulty would come where a defendant goes out of his way to show on his site that the link is without authority from the plaintiff and that there is no connection with the plaintiff.

Unauthorised use of a trade mark (whether registered or not) as a link is likely to give a plaintiff a cause of action.

Hong Kong's Copyright Ordinance, unlike the Copyright Designs and Patents Act, which formed the basis of the action in the Shetland Times case, has as a restricted act the making available of copies of a work to the public over the Internet. It is arguable that certain types of linking would amount to the making available of copies of a work to the public. Consider the following scenarios. First, a plaintiff who publishes material in a password protected site where only subscribers can access the information. A link by a defendant that bypasses the password protection would make available those works to a wider section of web users than the plaintiff authorised. The defendant would be making available that work to the public over the Internet. Second, an individual publishes a photograph of his children on his private web page for the benefit of his family. Only the family members have the URL and only they access the website. A defendant stumbles across the website and posts a link from his website to that private web site. Effectively, the defendant would have made available the works to the public over the Internet. A good defence might be that there is an implied licence to link, but this could be defeated if the plaintiff's site contained a specific notice warning against linking.

First published in E-lawasi@ in June 2000.