According to statistics, by October of 2020, the population of internet users around the globe has reached 4.6 billion, with users spending 6 hours and 55 minutes online a day on average. Corporations have been taking advantage of the internet technology to push their products and services. Since information may be shared and spread on the internet easily and at zero cost, there have been disputes recently around whether it is considered unfair competition for one to enrich content of its website by, without prior consent or authorization, providing link that may connect user’s to other’s webpage.
In Taiwan, there have been cases where corporations filed complaints with the Fair Trade Commission (FTC), alleging the content of their database, such as their human resource database or estate listing information, were “copied” by their competitors. The applicable law in these cases is Article 25 of the Fair Trade Act, which prohibits enterprises from engaging in “deceptive or obviously unfair conduct”. In general, there has been growing consensus in the practice that plagiarizing the content which others have invested significant effort into creating and claiming it as one’s own would be unfair competition and violate Article 25 of the Fair Trade Act. However, as internet technology continues to evolve, in some customized software where function of internet browser is integrated for the user’s convenience, company may present the content of other’s webpage through providing a link in the search result. While this model is not a direct copy of other’s content, it could yield similar result, because the content of other’s webpage will be displayed in the interface of software, which is very convenient for the users to browse.
The FTC addressed this issue in a recent case filed by local news media against Bloomberg, where Bloomberg was accused of engaging in unfair competition by providing the hyperlinks of third party’s webpage in its software product Bloomberg Terminal. More specifically, the complainant contended that without its consent, Bloomberg, through the search function, presented the content of complainant’s webpage to Bloomberg’s users by providing the link that could connect users to complainant’s webpage, which is displayed in Bloomberg’s software interface. The complainant argued that such practice may confuse the origin of the news content, and harm the complainant’s business opportunities and advertisement revenue.
While the FTC acknowledges that Bloomberg’s practice is controversial, it does not consider the practice constitutes violation of Article 25 of the Fair Trade Act. First, the news content available through search on Bloomberg Terminal is open to the public and free to access; in other words, consumers can find the same webpage and content simply by using their own web browsers. Thus, Bloomberg’s practice would not affect the revenue generated from complainant’s paid content. Second, the FTC does not believe that ordinary consumers would subscribe and pay for Bloomberg’s service in order to access the free news content created by the complainant, since Bloomberg Terminal’s subscribers buy Bloomberg’s service primarily because they want to access the relevant information in the financial market provided by Bloomberg. Therefore, Bloomberg’s practice does not constitute an act of free-riding. Moreover, since the complainant was unable to prove there is actual harm caused by Bloomberg’s alleged practice, the FTC eventually found the complaint meritless and sided with Bloomberg.
In view of the above, in a case where, as here, a hyperlink that could connect to other’s webpage is used to enrich the content of one’s own website, confusion of origin and loss of business opportunity would not necessarily be caused, because it is the link, not the content, that is presented to the users. Hence, to determine whether the use of hyperlinks for the purpose of enriching one’s database or website constitutes unfair competition, the FTC will make its determination on a case-by-case basis, and consider the totality of circumstances, including the nature of the content of the linked webpage, the way the information is presented, whether there exists competition between the parties, and the impact on the fairness of trade.