Legal

Liability for the Invisible

Just as incorporating a page or piece of information into another page could result in an action for passing off, so too could the use of a particular piece of information which is not actually displayed by a browser. Metatags were originally designed to enable authors to include in a page some information that should not be displayed when the page itself is displayed. The information which these tags can contain is user definable and may be anything from authorship, to information which a web server may analyse and process when passing the page to the accessing client.

Web indexing engines can quite easily scan the entire content of a web page which they encounter. This would, however, entail a large processing overhead so they are usually configured to scan the first few lines of each page.

One use of metatags is thus to include information which authors wish indexing engines to use to classify or index the pages such as key words and other pertinent information. Most users will only include information that refers solely to their pages. However, any text information can be placed in these metatags and as such other users can quite easily insert data into their pages which would result in indexing engines preferring their pages in preference to those of others. Indeed it is a trivial process to incorporate trading names, trade marks, or product or service descriptions of rivals. Indeed by repeating use of such information the user can thus effectively persuade an indexing engine to re-direct an enquiry from a rival to themselves. This is because with most indexing tools, the more times a particular word or phrase is discovered in the few lines that they index the higher the rating that page will receive, regardless of the actual visual content of the page. This practice has proved to be highly controversial and as such operators have been able to configure modern indexing engines to ignore metatags and simply scan the visable text content. These engines can analyse the metatags or compare the metatags and content in an attempt to ascertain whether metatag loading is taking place.

Authors could attempt to circumvent this analysis and filtering by simply inserting the names or marks of competitors into metatags in order to redirect enquiries to their own pages. Such an action might possibly constitute passing off if the loading of the metatags and the eventual site reached effectively represented a supposed connection with the actual site originally intended though this would depend on the surrounding facts.

The law of copyright will almost certainly attach to pages or other works on the World Wide Web such as images, sound files, or moving images. A recent question arose as to whether URLs themselves could attract copyright protection. Should they do so then operators of indexing services which create lists of links and URLs from World Wide Web could be legally liable as would authors who include links on their own pages. There is obviously a distinction between URLs which consist simply of the address of a particular piece of information, and URLs which take the form of embedded links but whose description is taken from the page to which they refer. The legal position is uncertain as the courts have yet to decide the matter. It is doubtful that they will be regarded as substantial enough to attract copyright but until the courts have addressed the issue in a definitive manner it is very difficult to give a definite answer to the question.

The World Wide Web is a delightful medium in which commercial entities could construct mechanisms to enter into electronic commerce ("e-commerce") with consumers or other commercial entities. Contract law will apply to these types of commerce. The location of contracting parties is very important, especially when the contracts are consumer contracts. Within European Union Member States, consumer protection law is overriding and will override any terms within a contract which contravenes the provisions of the law. Such terms could themselves constitute a civil offence and in some cases a criminal offence. In addition to legal requirements regarding the terms and conditions of the consumer contracts the legislation will almost certainly require that contracts be in the national language of the consumer. Failure to provide for this may not only render the contract void or unenforceable, but in some circumstances could result in the company who operate the Web Site committing an offence.

By placing an advertisement on the World Wide Web, a business or non-commercial organisation is essentially advertising to the World. Though the contents may satisfy the legal requirements of their home jurisdiction, in many cases, such as financial advertising and product advertising, that same material will breach regulations in other jurisdictions. The question of course is whether those jurisdictions can enforce their regulations. It is true that many may not be able to do so, but they may still seek to take jurisdiction. Certainly the jurisdictions will assert their jurisdiction if they are able to do so.

In essence the laws of the jurisdictions (countries) in which a business wishes to trade or do business should be checked before placing advertisements which could fall foul of regulation. Technically, it is possible to limit and control access to certain web pages which consumers could visit but these are never totally secure. Most regulators however, do recognise the difficulties involved and are generally satisfied provided that the commercial interests take adequate steps to comply with the regulations.