Enforceability of Do-Not-Link Provisions
The PanAm games currently being held in Toronto had until very recently a ‘do not link’ term on its web page.
I do not understand why such a term would be enforceable. What legal right is asserted? Linking does not imply endorsement, as we know from defamation cases. Nor – so far as I know – does it constitute use of any trade mark in the URL linked to, by the person making the link. So – what?
The Toronto IP firm Bereskin and Parr sets out an analysis of this issue. It mentions some of the difficulties in enforcement, but in the absence of direct case authority, it does not have a definitive conclusion.
The firm does – in my view – overstate the enforceability of browsewrap conditions in Canada. It says:
“browsewrap agreements” … are generally considered to be enforceable contracts
And
courts in Canada typically uphold and enforce Terms of Use (or website browsewrap agreements)
So far as I know, Canadian courts have upheld browsewrap contracts in two cases, one in BC cited by the firm (Century 21 v Rogers) and one in Quebec (Sutton Realty). Both were scraping cases, where someone was using Multiple Listing Service information without being a member of MLS. In other words, commercial piracy.
Almost all of the US cases enforcing browsewrap terms have been the same: somebody was taking commercially valuable information without permission or payment, contrary to the browsewrap terms – but also contrary to common sense, common morality, and any sense of fairness. So courts have bent over backwards to find a contract to enforce against such a practice.
The Dell v Consumers Union case out of Quebec might be another – where the SCC enforced an arbitration clause – though again, the people resisting enforcement were trying to take unfair advantage of a clear mistake by the company, even circulating deep links to avoid the effect of the first attempt to correct the mistake on the website. In other words, a very unsympathetic opponent of the browsewrap terms.
Otherwise courts have tended not to enforce browsewrap terms, for want of consent.
The other cases cited in the article do not support the premise at all. Crookes goes in the other direction (as B&P admit) and the Kanitz decision in Ontario is an outlier, never really followed, and overruled in its particulars by legislation almost immediately.
In fact B&P do conclude that enforcement depends on the facts. It just seems to me that the general principle would be non-enforcement, rather than enforcement.
I understand the commercial desire of the organizers of the Games to keep people from trying to associate themselves with the Games for commercial purposes without having paid to be an official sponsor. I do not understand why simply linking to the site, as distinct from using its content for commercial purposes, would be relevant to that desire.
An update to the article says that the PanAm site no longer contains the prohibition. Embarrassment has done the work faster than the courts could have done.
Do you regularly insist on, or have your clients sign, linking agreements? Why?
Let’s not omit that the PanAm site is tweeting out those same links, and encouraging the public to make comment and link back to their website — all without written consent.
Mixed messages perhaps?
The technical community usually blames lawyers for this kind of unconscionable* behaviors, but I see it as more of a business desire. The bad\s thing is it can be backed up by “persons of good will but little understanding” trying to make a case to satisfy their customers.
Perhaps a bit of moral hazard… I’ll claim one wants to push back when on’s case in either law or logic is weak, as you can get held up to public ridicule, as happened here.
–dave
[* in the english-language sense, not a technical one]
I blame the copy-pasting of old precedent language from 1998. But it’s just a theory. :)
“It’s like déjà vu all over again.”
This is reminiscent of the Captain Copyright saga from 9 years ago, in which Access Copyright was being criticized and ridiculed over its propaganda campaign aimed at children. Access Copyright asserted that “permission to link is explicitly withheld from any website the contents of which may, in the opinion of the Access Copyright, be damaging or cause harm to the reputation of Access Copyright.”
See: http://excesscopyright.blogspot.ca/search?q=captain+copyright+linking
HPK
One does suspect that one reason for requiring permission to link is to avoid criticism, as Access Copyright was trying to do.
But withholding permission is effective only if permission is needed, and I have yet to be persuaded that any permission is ever needed to link to a URL. If there’s a technical barrier, like a paywall, then perhaps there may be legal as well as technical obstacles to circumventing it, but if it’s just a URL like any other, then it’s part of the commons accessible to Internet users everywhere in the world.