Think before you link!: When does unauthorised hyperlinking infringe copyright?
20 / 10 / 2016
In what circumstances does the unauthorised posting of a hyperlink run the risk of infringing copyright? The question is an important one, for hyperlinks help the internet to work smoothly; and it is also a topical one, for it was the subject of a recent ruling by the Court of Justice of the European Union (CJEU) – GS Media – that helps to clarify the issue. We review this decision, and also compare and contrast it with two other CJEU rulings in which websites and copyright infringement were considered.
The legal background
Article 3(1) of the European Union’s Copyright Directive required EU Member States to:
“…provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means…“
This requirement has duly been transposed into their respective domestic laws by the EU’s Member States, including the UK, which supplemented accordingly the Copyright, Designs and Patents Act 1988. But the crucial phrase “communication to the public” was not defined by the Directive, so subsequent jurisprudence on the part of the CJEU has been necessary to clarify what it covered. With specific reference to the meaning of “public”, the CJEU has held that, for an online communication by a defendant to infringe copyright, it is highly relevant to decide whether it is directed at a “new public”, i.e. a public that was not taken into account by the copyright owner when it authorised the initial communication.
The Svensson case
In 2014 the CJEU had the opportunity of ruling on the reference to it of a case (Svensso) involving what is sometimes referred to as “everyday hyperlinking”. Mr Svensson and his co-claimants wrote press articles in which copyright vested (the Copyright Works), and consented to their being published and made freely available on a website (the Initial Website). The defendant, without the claimants’ consent, posted on its own website (the Linking Website) clickable links to those articles, and the claimants sought compensation in the Swedish courts for copyright infringement. But the CJEU, to whom the case was referred for a preliminary ruling, held that the defendant’s actions did not constitute copyright infringement under Article 3(1) of the Directive. The ratio decidendi was that, although it was a “communication”, the hyperlink posted by the defendant was not made to a “new public”, since the users of the Linking Website were already deemed to be users of the Initial Website. The Court went on to explain that, even if the result of the hyperlinking were to make the articles appear as if they were on the Linking Website rather than the Initial one (“framing”), its finding of non-infringement would remain the same.
The GS Media case
The ruling in Svensson provided welcome clarification of an important issue, but it left crucial questions unanswered. For example, what if the copyright works had been illegally uploaded onto the Initial Website? It was precisely this situation that arose in GS Media, a case referred to the CJEU by the Dutch Supreme Court. This time the Copyright Works were not journalistic articles, but nude photos of a Dutch model that had been intended to feature in a forthcoming issue of Playboy magazine, but which, prior to their publication, were leaked and illegally uploaded onto an Australian website. Despite being required not to do so by the owners of the Copyright Works, the defendant – the Dutch publisher of a news- and-gossip website called Geen Stijl – repeatedly posted hyperlinks that redirected its readers to the photographs in question, first to the Australian website and then to other websites around the world on which the photographs had appeared. It was therefore sued for copyright infringement in the Netherlands, whose Supreme Court referred the issue to the CJEU. The latter ruled in September 2016 that, in contrast to its decision in Svensson, the hyperlinking did constitute a “communication to the public”, and that it thus amounted to infringement.
The court’s judgment rambled, but the ratio decidendi seems to have been as follows. Where the unauthorised hyperlinking to illegally-uploaded copyright material is alleged to infringe, there are a number of factors which may serve to establish liability on the defendant’s part. One is where the defendant knew that the material had been uploaded without the consent of the copyright owner; another is where there is a rebuttable presumption of such knowledge, as, for example, where the defendant is posting its hyperlinks for profit; and yet another is where the hyperlinking allows use of the Linking Website to circumvent restrictions on the Initial Website. (All three of these factors were present in the instant case.) And associated with all of these factors is the occurrence of a “new public”, i.e. one not contemplated or intended by the copyright owner to have access to its works.
On the other hand, the CJEU mentioned various factors that will or could serve to negative liability for infringement. One is where there is no “new public”, as in the Svensson case. Another is where it is difficult for the hyperlinker to ascertain whether the work in issue is protected by copyright, or (if it is) whether the owner of that copyright has consented to it having been posted online. And, more generally, the CJEU expressly mentioned the public interest issue of hyperlinks – namely, “that the internet is…of particular importance to freedom of expression and of information…and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information“.
Given the ubiquity of hyperlinking, it is extremely useful that the combination of the rulings in Svensson and GS Media provide us with a degree of clarification of when unauthorised hyperlinking will infringe copyright, and when it won’t. But hammering out the laws that govern online infringement is still very much a work-in-progress, and one must never underestimate the extreme difficulty encountered by courts in trying to apply 20th century copyright law to a digital context. A striking example of this is that it was not until a full quarter of a century after the worldwide web had been invented that the CJEU finally ruled on the (very!) basic point that internet browsing does not constitute copyright infringement. We will no doubt have to wait much longer than another quarter of a century before copyright laws and the internet are fully synchronised.
For further information please contact Jonathan Cornthwaite at email@example.com.
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
 section 16(1)(d)
 Svensson et al v Retriever Sverige AB, Case C-466/12, 13 February 2014
 Public Relations Consultants Association v Newspaper Licensing Agency et al, Case C-360/13, June 2014
Dr. Jonathan Cornthwaite‐