July 13, 2015
By Catherine Lovrics and Tamara Céline Winegust
Major sporting events are an exciting time for those living, working, and running businesses in the host city. Significant investments are made bringing events to cities. Branding and advertising are important in building up the event’s identity and public anticipation. Protecting the value associated with brand to maintain the value of sponsorship and endorsement opportunities is no doubt important, and understandably organizers are cautious to maintain control over brand use.
The website terms state:
Links to this Site are not permitted except with the written consent of TO2015™. If you wish to link to the Site, you must submit a written request to TO2015™ to do so. Requests for written consent can be sent to email@example.com. TO2015™ reserves the right to withhold its consent to link, such right to be exercised in its sole and unfettered discretion.
These types of prohibitions are not uncommon (which may come as a surprise to some), and many websites include such blanket prohibitions against linking. Linking is a common activity, and has been recognized by the Canadian Supreme Court as being of “core significance” to the functioning of the Internet. Unlike framing a website—where the content of one website appears “framed” by another website— linking is generally considered an innocuous activity. There was a time when “deeplinking” was a hot topic in the legal community, and some thought that providing a link other than to the homepage of the website carried more risk. The issue seems to have died down, with deeplinking also now being a common activity, and with the tiny URL becoming ubiquitous
A balanced and measured approach to brand enforcement is advisable. Today, most businesses know that aggressive enforcement can quickly go viral, which is likely to escalate, not contain a problem. Also, it is important not to forget, that practically speaking, most websites exist to build publicity and awareness—website owners want people to link to them in social media, and for the website to be mentioned in newspapers. Linking is generally good for marketing and profile.
I am also mindful… of the fact that we are dealing… with a different mode of doing business… with people who wish to avail themselves of an electronic environment and the electronic services that are available through it. It does not seem unreasonable for persons, who are seeking electronic access to all manner of goods, services and products along with information, communication, entertainment and other resources, to have the legal attributes of their relationship with the very entity that is providing such electronic access, defined and communicated to them through that electronic format. I conclude, therefore, that there was adequate notice given to customers of the changes to the user agreement which then bound the plaintiffs when they continued to use the defendant's service.
Whether public policy would result in a broad term prohibiting all linking without permission not being enforced is also a live question. The Canadian Supreme Court has recognized the “core” importance of linking to the operation of the internet and making information available (see Crookes v Newton, 2011 SCC 47 at para 36). That case involved whether a link to defamatory content amounted to “publishing” the content. In its reasons, the Supreme Court noted the symbiotic relationship between Internet linking and freedom of expression:
The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.
Also, there is a good argument that those who just link, but don’t browse, cannot be bound by the terms—if you don’t “browse”, how can a browsewrap agreement bind you? In Century 21, at 108, the Court held:
UPDATE: Presumably in response to the controversy surrounding the prohibition against linking to the Pan Am Games website, the prohibition was removed from the Terms for the website – in the spirit of uninhibited linking see http://www.toronto2015.org/terms-of-use. The terms now prohibit "use of or embedding of content" without written consent. This new prohibition is still not limited to commercial uses. Let's see whether some controversy will remain over non-commercial use of "content" from the website, such as event results, medal count of countries, etc.
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