Scottish Court Orders Online Newspaper to Remove Links to Competitorís Web Site

Jacqueline Paige

BNA Patent, Trademark & Copyright Law Daily, Nov. 4, 1996

WASHINGTON (BNA) -- The Shetland islands, just off the north coast of Scotland, have become the battleground for a test case challenging the way in which "hyperlinks" -- the very essence of the Internet's World Wide Web and the mechanisms that hold the system together -- are used. (Shetland Times Ltd. v. Wills, Scot SessCas, No. - -, 10/24/96).

The 24,000 residents of the 15 or so continuously inhabited islands of the Shetlands have a choice of two online newspapers: The Shetland Times or The Shetland News. On Oct. 15, the Shetland Times filed a summons in Scotland's supreme civil court, the Court of Session, preventing the Shetland News from making Internet links from its World Wide Web pages, to pages operated by the Shetland Times.

On Oct. 24 the Court of Session granted a temporary judgment forcing the Shetland News to remove all links to the pages of the Shetland Times' online Web site.

In the summons, the plaintiff ("pursuers"' in Britain) -- the Shetland Times -- claims that on the "main headline page" of the Shetland News the defendants ("defenders") sell advertising space. It claims "the defenders attract() subscribers to this web site inter alia by using newspaper headlines. The headlines of the pursuers . . . were published under their copyright both in the newspaper and on their own web site. The defenders (the News) have used these headlines without reference to the pursuers (the Times). They have paid nothing to the pursuers (the Times) in respect of the use of the headlines."

Copyright Argument?

Robert Wishart, managing director of the Shetland Times, said in an Oct. 25 statement that "this is an argument over whether a publisher on the Internet retains copyright in any material once it goes 'on-line.' My view is that by incorporating our copyright material into his news service he infringes our copyright. The technical process by which this is achieved is irrelevant," he said.

Jonathan Wills, editor of the Shetland News told BNA Oct. 30 that the ban is "an unprecedented attempt to block free access to the Internet." He said, "Everybody makes links on the Internet -- that's how it works. Without it there is no Internet."

In his opinion, the judge made the interim decision because "this is a new area and it's odd." Wills said all the facts will be before the judge on Nov. 18, when the full hearing is scheduled to take place. "Now it's in the hands of my trade union solicitors -- the National Union of Journalists," he said.

Alistair Wilson, IT partner with Maches and Co, Solicitors in London, told BNA that if all the defendants were doing was putting up a signpost, then it would be "quite difficult for the Shetland Times to sustain a case." However, he said it appears the Shetland News may have retyped the headlines, which is an infringement of copyright.

"I think the Times will have a difficult job persuading the court of copyright violations," Wilson said. If the court holds in favor of the plaintiff (the Times), it will cause a lot of interest worldwide because it would mean that part of the benefits of the Internet, which is the free flow of information, would be curtailed, he said.

Claim For Unfair Competition?

Wilson said the Shetland Times' real complaint should be about unfair competition. He said from the Times' standpoint, the argument is that The Shetland News is unfairly competing using the Shetland Times' Web pages. "What I hope will happen in England and Scotland now is that the courts will move to develop a broader law on unfair competition which will be appropriate to the laws in the electronic age," he said.

Wilson said if the Shetland Times succeeds, "it would create all kinds of ramifications for use of the Internet and it will highlight the fact that the net operates over many legal jurisdictions with different legal systems."

Malcolm Laing, a partner with Solicitors Ledingham Chalmers in Edinburg, told BNA Oct. 30 that the fact that "this is a judgment in the Court of Session rather than in the lower Sheriff's Court makes this judgement significant. What is also important is that this is only an interim judgment. The Court's final decision will be based on detailed arguments presented by both sides next month."

Wills explained to BNA that he had been terminated by Wishart in 1990 from his position as editor of the Shetland Times. BNA asked whether there was, therefore, more to the battle than meets the eye. Wills said there was no bad feeling on his part. The crux of the matter, Wills said, is that this case is "based on an inadequate understanding of the Internet."