What is the legal basis of requiring permission before one can link to a webpage?

Question

I came across the "Linking Terms" of OTC Markets Group Inc.'s website:

PLEASE READ THESE LINKING TERMS AND CONDITIONS ("LINKING TERMS") BEFORE LINKING TO THIS WEB SITE. YOU MAY NOT LINK TO THIS WEBSITE UNLESS YOU ACCEPT AND COMPLY WITH THESE LINKING TERMS AS WELL AS ALL OTHER TERMS AND CONDITIONS OF SERVICE ON THIS WEB SITE. [...]

[...]

... you may include a link(s) on your website to the home pages of OTC Markets' websites currently located at www.otcmarkets.com, www.otciq.com, www.otcdealer.com, www.qaravan.com and www.virtualinvestorconferences.com (each individually referred to as a "Home Page"), and to pages on the www.otcmarkets.com domain providing quote, chart or news functionality; provided that you first fill out the registration form below. [...]

I am surprised that I need to get permission from the company to link to their website. Does this mean that I need to apply for permission for links like this? (oops, I may have already broken the "Linking Terms"). I find this absurd. Even a link to the home page requires permission!

Why don't I have the freedom to link to publicly available search-engine-indexed pages that contain nothing illegal? What is the legal basis for these linking restrictions? Can the company actually enforce these "Linking Terms"?

Answer 1

Please see this related answer where this is discussed, although is a slightly different context.

There have not been many cases on this subject, but it appears that, at least in the US and EU, a person is free to post web pages that link to others without permission and indeed against the wishes of the operator of the destination site. However, "deep linking" that bypasses a login or other access control page, or an advertising page that visitors who enter via a home page would be expected to load, particularly if such deep linking deprives the destination site of revenue, may constitute copyright infringement. "framing" a linked page so that it appears to be part of the linking site, may also be copyright infringement, and might also be actionable under trademark law. See Nolo's page on Linking, Framing, and Inlining And the Wikipedia article on Deep linking

In Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc, 75 F. Supp. 2d 1290 (D. Utah 1999) deep linking was held to be contributory copyright infringement. See The Wikipedia article on the case In that case, the content being linked to had been posted without the authorization of the copyright holder, and no fair use issue was raised by the defense.

In general, courts have found that publishing a page on the web invites others to visit it and link to it. In the Wikipedia article on "Deep linking" (linked above) it is said that:

In a February 2006 ruling, the Danish Maritime and Commercial Court (Copenhagen) found systematic crawling, indexing and deep linking by portal site ofir.dk of real estate site Home.dk not to conflict with Danish law or the database directive of the European Union. The Court stated that search engines are desirable for the functioning of the Internet, and that, when publishing information on the Internet, one must assume—and accept—that search engines deep-link to individual pages of one's website.

In Perfect 10, Inc. v. Amazon.com, Inc. 508 F.3d 1146 (9th Cir. 2007) a US court held that links to copyrighted images as part of an image search were not copyright infringement. The Ninth Circuit court of Appeals held that Google's display and caching of thumbnails was fair use, mainly because they were "highly transformative."

However, a ToS or ELUA may be a legally binding contract between a site operator and site users. If it forbids linking, that may be enforceable, depending on the laws of the country where suit is brought. Owners of publicly accessible databases are permitted, under EU law, to impose and enforce access restrictions. See the case of Ryanair vs PR Aviation brought in the European Court of Justice.

Answer 2

Licenses to use websites fall into two main categories: browsewrap licenses, where the website has a page users can go visit to see all the terms and conditions; and clickwrap licenses, where a user has to check a box or otherwise affirmatively indicate his agreement to the website's terms and conditions.

Under Nguyen v Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014), browsewrap licenses may not be sufficient to create a binding contract between the licensor and the licensee, because there is no way to know whether a user actually ever saw, read, understood, or agreed to the terms:

Where the link to a website's terms of use is buried at the bottom of the page or tucked away in obscure corners of the website where users are unlikely to see it, courts have refused to enforce the browsewrap agreement.

While the court said that some browsewrap licenses might be enforceable, it indicated that they would need to be much more prominent, such as in cases "where every page on the website had a textual notice" of an agreement not to use the website's content for commercial purposes.

But OTC's terms clearly fall closer to the first example. They're "buried at the bottom of the page" and can't even be seen there until you click the GDPR-required cookie notice. Under Nguyen, then, the linking terms would be unenforceable.

Even if OTC used a clickwrap license, I don't know that the linking terms would necessarily be enforceable. I'm not aware of any courts that have considered the question, but I suspect there would be some reluctance to allow that kind of interference with one of the Internet's most important features.