You’ve Been Framed! Nigel Miller

The Internet is again leading to litigation in previously uncharted territory. The use of “frames” allows web pages to be divided into multiple windows that may be operated independently. In particular, a frame may create a static window that remains on the screen whilst other sites are accessed. This means that the originator? &ame including, for example, advertising, remains on the screen throughout - a potentially attractive spot for advertisers.

The concept has led to an action being brought in the US against Total News Inc by The Washington Post and several other high profile

news providers including CNN, Dow Jones, Reuters and Time. Total News is providing links to the news pages of the plaintiffs by means of frames. The Total News frame remains on screen throughout and surrounds material wi:hh” ad%~~n~:

The plaintiffs’ sites also contain advertising which,

the plaintiffs claim, is obscured, often completely, by the advertising contained in Total News’ frame. They claim, therefore, that their site

is consequently devalued. Access to Total News and

the plaintiffs’ news sites is free; the sites are supported entirely through advertising revenue. In the plaintiffs’ statement of claim, the figure of $150 million is quoted as being spent on advertising on the Internet by businesses in the first three quarters of 1996.

The plaintiffs allege that the framing amounts to a misappropriation of commercial property and unfair competition. They claim that Total News is taking the commercial value of the news printed on the site and selling it for its own advantage. The plaint& allege that they spend substantial amounts of money “collecting, preparing and distributing copyrighted accounts of ‘hot news”’ to attract advertisers to their site. Total News on the other hand, the plaintiffs’ claim, create no copyrighted news stories and have set up a “parasitic site”. They claim

that Total News is “engaged in the Internet equivalent of pirating copyrighted material” whilst “pocketing the advertising revenue”.

The plaintiffs have formulated their claim by

alleging, amongst other things, misappropriation of their intellectual property, trademark dilution, direct and indirect trademark intiingement and interference with the plaintif&’ relationship with their advertisers.

The action has only recently been filed and no decision has been made on it. Only the plaintiffs’ statement

of claim is available at present. But the implications of the case are potentially far reaching. The strength of the Web lies in the mass of links between the various Web sites. It is inconceivable that a Web site owner could have any legal objection to a simple hyper-text link to his site from another. I f he did not mean to invite such links, then he should make that plain on his site or perhaps he has no business being on the Web. On the other hand, there may be categories of link that could give rise to

legal issues. For example, inserting a link to a third party’s logo or graphic on another site so that the logo or graphic appears as if it was part of the site (an inline link) could involve infringement of intellectual property

Computer Audit Update l July 1997 0 1997, $17.00 Elsevier Science Ltd.

rights or some form of misrepresentation.

Using frames as a method of linking is a relatively recent development. Whereas a hypertext link allows you to move from one site to another, a web site using frames enables you to view another web site in its entirety without ever leaving the site. Moreover, the other site may be surrounded by the name, logo and advertising of the site.

The question of links was considered in the recent Scottish decision in the Outer House of the Court of Session in the case of Shetland Times Limited -v- Jonathan Wills and Another (The Times, 2 1 January 1997).

In that case, the plaintiff had established a website for its newspaper on the Internet. Access to the site was free and, although not carrying advertising at that time, the plaintiff’s intention was to fund it in future by selling advertising space once the site was well known enough to attract advertising revenue. The defendants also had a site, known as “The Shetland News”. On its home page, which carried advertising, it provided links to the plaintiff’s website via headlines which were repeated word for word from the plaintiff’s paper. You could, therefore, go directly to an article by clicking on its headline. You would not have to go via the plaintiff’s home page and so would miss any advertising that might, in the future, appear on the home page.

Although in the Shetland case, the articles were not

framed, the fact that the advertising on the plaintiff’s home page would be missed meant that a similar commercial advantage was lost. In that case, it was held that the verbatim inclusion of the headlines was prima facie an infringement of copyright. As a result, an interim interdict was awarded preventing the defendants from providing links to the plaintiff’s headlines.

On the Total News page, the link was provided not by headlines, but by the plaintiffs’ logos, which are protected by trade mark.The plaintiffs’ claim that this is a dilution of their mark, and an infringement of the mark that potentially causes confusion to consumers. They also claim breach of copyright, alleging that the reproduction of their sites is without consent.

Is this merely an attempt by publishers in traditional media to curtail the upstart - but commercially threatening - activities of their new media rivals? Or could this use of frames stretch too far the notion of the implied consent given by a web site owner for his site to be hyper-linked to another? If The Washington Post prevails, web site owners will have to exercise caution in using frames to provide links to third party sites and, inevitably, the Internet community at large will be the poorer.

commercial and IT law partner at Fox Williams,

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