Shetland Case Settled, but Sets No Precedent

By: Steve Outing

The growth of the Internet as a news publishing medium continues to present new legal issues in need of resolution. Unfortunately, some of the early legal disputes that have emerged are being settled by the warring parties out of court, so no legal precedent is set.

(Such was the case when six large U.S. newspaper companies filed a lawsuit earlier this year against TotalNews, a news aggregator Web site that put linked news sites into "frames," such that TotalNews branding and advertising appeared next to the news sites' content. That case was settled out of court, and a legal resolution over the framing controversy is still sorely needed.)

Another such case that has been closely watched is the Shetland Times newspaper's lawsuit against its online-only competitor, the Shetland News. (Both publish in the Shetland Islands north of Scotland.) The Times' publisher objected to the News reproducing Times headlines on the News Web site which linked directly to articles within the Times' Web site. The Times' publisher, Robert Wishart, termed the News site a "parasite" for what he viewed as a competitor "stealing" his content (even though the News site was giving the Times Web site additional page impressions).

Should this case have gone to full court resolution and the Times prevailed, it would have set a legal precedent that linking to others' Web content without permission would be illegal in the UK. (To be fair, Wishart disputes that contention, saying that this is a copyright infringement case only that would have no effect on the ability for UK Web sites to freely link to other Web sites.)

Originally filed in 1996, the legal wrangle between the two publishers was put to rest last week, when a deal was worked out that puts limitations on how the Shetland News can link to content on the Shetland Times site. The compromise deal specifies:

The News site is entitled to link to stories on the Times' Web site by means of a headline that is a hypertext link to the story on the Times site, but with several conditions. Links on the News site to Times' Web content must be accompanied by the legend "A Shetland Times Story" appearing underneath each headline. Adjacent to any such link on the News site must appear a button showing the Shetland Times logo. The legend and the button must be active hyperlinks to the Shetland Times main news headlines page. Neither party is required to pay the other any damages or expenses over the lawsuit. So the dispute between the two parties is settled, and both publishers can go on with their work. But outside of the tiny Scottish islands, the case now no longer means much. Says Jonathan Wills, the Shetland News' owner and defendant in the lawsuit filed by the Times (his former employer), "Put simply, the case leaves the law on the Internet exactly where it was before the legal action was started."

Wills says that the settlement prohibits him from saying much about the settlement, but he believes the following: "Links to public domain Web pages are unaffected. There is no requirement to visit a home page before any other page of a site. (And) any Web site operator is still free to use any of the various means available to block, restrict, channel, filter or charge for access to all or any of his/her pages."

(Representatives of the Shetland Times were not available for comment.)

Had this case gone on to be settled by a court, of course there's no telling what might have been the result. It's likely that Wishart and the Times would not have prevailed, however, for a resolution in his favor would have had an absurd result -- making the World Wide Web, in effect, illegal in the UK. (Actually, that's what a preliminary verdict in the case in October 1996 did. A Scottish court gave a preliminary interdict (equivalent to an injunction in British law) to prevent the News from offering links from its Web pages to those of the Times.)

At best, Wishart might have won a judgment that required his adversary, Wills, to do what the negotiated settlement requires -- identify on the News site that the linked content is sourced by the Times.

Neither side really won in this case, and both sides spent goodly sums of money on lawyers in the process. Wills had the support of the National Union of Journalists, which created a defense fund to help pay his legal fees. Wishart simply spent a large sum on legal fees to get Wills to make it more obvious that the links on the News site were to Times content.

This seems a high price for these two publishers to pay. Many Internet observers had hoped that this case would provide some legal guidance (even if it only applied to the UK), but it's not clear if anyone gains much from the final outcome.

"You may well ask what this was about," says Wills. "So do I."

WebTV 'SurfSpots': Yuck

In my last column, I noted the legal angle behind the WebTV network's new practice of placing advertisements in between Web pages, so that a WebTV user who is surfing the Web looking for information sees ads pop up when a new page is requested. Publishers such as the Los Angeles Times question the legality of a third party like Web TV inserting advertising into LAT Web content.

But this is a business issue as much as a legal one, and annoying consumers is a bad business decision on WebTV's part. I heard from some WebTV users about their perception of this practice. Wrote one:

"We, the WebTV users, are following with great interest this issue. The SurfSpots have effectively destroyed our Internet surfing enjoyment in pursuit of information and fun! They do not appear 'between' pages; the ad obliterates half of the page that we are still scanning, as we wait for the next one to load; the entire field of vision, except the ad, darkens, and the train of thought is interrupted in a very irritating way.

"I know that you are addressing the legal issues in your column. Will someone take up the cause of the disrespected, disregarded consumer?

"If you are a sports fan or a chess player, you are effectively prevented from pursuing your interests on the interactive sites on the Net. Try reading a poetry e-zine, when at every click to the next poem a Honda or Tylenol (ad) spams you in the face. ... Just to let you know our feelings."

Wrote another WebTV user:

"I am one of the many WebTV users outraged at their recent marketing ploy. It is disconcerting to have a Tylenol bottle plastered over 'Winged Victory' on the Louvre Museum Web site while waiting for the next graphic to download. Unlike TV sponsorship, WebTV and its collaborators have contributed nothing to the production costs of the Louvre site. This is a usurpation of the labor and intent of such sites -- e.g., university projects, museums, libraries, etc. It's a blatant immoral action and should be addressed before a dangerous precedent is set."

Online corrections: An opposing view

My column earlier this week about the ethics of handling corrections in online archives brought these comments from Jon Donley, editor of San Antonio Express-News Online (Texas). I'm publishing all of his letter, because he eloquently argues a point opposed to my own.

"We wrestled with this issue, but being unsophisticated copy desk vets, we applied a much different rule of thumb born of a simple newsroom dogma: never knowingly publish incorrect information. It's normal, while the presses are rolling, to fly in corrections -- head busts, updates, typos, etc. -- and no thought is given to continuing to print the mistakes for the sake of historical accuracy. Nor would we feel the need to continue printing the incorrect information, while inserting an editor's note at the top noting that 'correct information can be found on page A-24.'

"We new media people do think a little differently than newspaper archivists: We don't consider our operations as an online showcase of the newspaper as it was printed, but rather as a legitimate information delivery system in its own right.

"I agree that if the term 'Web archive' is used for a historical reference database of stories presented 'as published,' the same rules should apply as those used by the librarian. There's a value in that sort of database. But the term as used in your article was applied freely to stories that I would consider in mid-process of online publication. An online service doesn't have the same publication cycle as a newspaper -- it is both more immediate and also longer-lasting. I wouldn't be doing my job if I just shoveled newspaper stories online. ... I massage them in a number of ways that violate archive purism. I publish the full story, including the last six inches that were whacked in the composing room; I change the headline, run five photos instead of the mugshot they could squeeze into the news hole, add a couple of sound clips and a feedback forum, and post the whole thing in a promotable package that I may keep up for a week.

"Do I make corrections during that week? You bet I do! I'm still in the middle of my publishing cycle. ... In my online world, the edition is published one 'paper' at a time, each time the reader opens the page. The presses are rolling, so to speak, and the only ethical -- and professional -- thing for me to do is fix any mistakes so that each time a visitor hits my page, they get the full, complete and accurate story.

"It might be that the ethical high ground would require a link to a 'setting it straight' page for confession and repentance about earlier errors. But it would be foolish -- perhaps even dangerous in a legal liability sense -- to continue knowingly online posting stories containing errors or (gasp) libel.

"We need to break out of this box. An online service can use the information-gathering resources of a newspaper -- and even its masthead -- but this doesn't make it a newspaper. It's a different medium. Some rules -- such as the accuracy thing -- cut across all media. Some, such as historically representational archives on the fly, don't."

Contact: Jon Donley, jdonley@advance.net

Steve

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This column is written by Steve Outing exclusively for Editor & Publisher Interactive three days a week. News, tips, and other communications may be sent to Mr. Outing at steve@planetarynews.com

The views expressed in the above column do not necessarily represent the views of the Editor & Publisher company