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Hyperlinks Under Attack in Europe (or “When You Thought It Could Not Get Worse”…)

· September 9, 2016

DisCo readers may remember that, last February, my colleagues Matt Schruers and Jakob Kucharczyk explained that Europe’s highest court, the Court of Justice of the European Union (CJEU), would have to rule on a case about hyperlinks that could decide the fate of the World Wide Web in Europe. They were not joking around.

Well, yesterday the CJEU published its ruling on GS Media (C-160/15) – and it’s as bad as we feared it could be. But let’s take a step back first.

Under EU copyright law, the “communication to the public” of a work (comprised of two cumulative criteria, an “act of communication” to “a public”) is an exclusive right of the rights holder. Therefore, over the past few years, the CJEU tried painfully to answer the question of whether posting a link violates copyright law.

To sum up quickly, the CJEU ruled several years ago in a case called Svensson that links – i.e., the single most important feature of the Internet – were within the scope of copyright protection, as they were “acts of communication”. However, the case dealt with a situation where a website was linking to legal content, freely accessible and posted with the authorisation of the rights holder. Therefore, the Court concluded logically that no copyright infringement had taken place as linking to this content did not communicate it to “a new public”. (For more details, please see our detailed analysis here and here). But one crucial question was left open – what about linking to content posted online without the authorisation of the rights holder?

That’s what GS Media is about. In this case, a Dutch blog posted links to photos uploaded on an Australian server without the authorisation of the rights holder, Playboy Magazine. The blog did not remove the links when notified that the content it pointed to was infringing copyright, and subsequently posted additional links when the photos were uploaded on other servers. (More details here). Therefore, the CJEU was asked whether linking to content posted without the authorisation of the rights holder is copyright infringement or not.

Advocate General Wathelet of the CJEU, in his opinion of April 7, 2016, argued that linking should not be an “act of communication”, and that in fact links should not fall under the scope of copyright protection. The AG opined, in para. 54 that

“hyperlinks which lead, even directly, to protected works do not “make available” those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works”. He added, in para. 78 that “if users were at risk of proceedings for infringement of copyright […] whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society”.   (More details here).

We at DisCo wholeheartedly agree with this position. Links are like road signs on our Internet highway; they point to content but never ‘communicate’ it. Hence, links should not fall under copyright protection. However, that is not the decision of the Court.

The CJEU ruled that “for the purposes of the individualised assessment of the existence of a ‘communication to the public’ […], it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the Internet without the consent of the copyright holder”. [para. 47].

In other words, the Court appears to say that, if a person links to copyright-infringing content but does not make any profit AND did not know or could not reasonably know that this content is infringing, that link is not a communication to the public – i.e. this person does not infringe copyright.

The court’s rule appears to be formed with a specific type of defendant in mind: websites hosting thousands of links, knowingly pointing users towards content uploaded illegally. However, newspaper and magazine websites such as Le Monde, GQ UK or FAZ pursue profit and include links to outside materials in their articles. In case the content they link to is infringing copyright (for instance, what about a link to leaked documents or to another article including videos which have not been properly licensed?), would journalists and their publishers be held liable?

This seems to be the case, as para. 51 explains that, “when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder”.

Any for-profit website, (including journalists and potentially blogs with ads, among others)  would have to conduct checks with regards to the legality of the content before linking – irrespective of the fact that no one, when looking at a webpage, can know whether it is infringing or not copyright, and who owns the rights. And that’s without even reminding everyone that webpages are dynamic… And that the content there on day 1 can have changed on day 2.

But this gets even worse. Para. 49 seems to imply that the two criteria listed above for a link to become “communication to the public” and thereby copyright infringement (i.e. making profit AND knowing that the content is infringing) do not apply where it is established that the person posting the link knows or ought to know that the hyperlink posted provides access to a work illegally placed on the Internet.

In other words, proving that a user knew or ought to have known that content they linked to was unlicensed may be sufficient to state a copyright infringement claim. This interpretation of the decision could lead to liability for a user linking to a homemade video on DailyMotion including a song from Beyonce.

This is an extremely worrying decision, with potentially far-reaching consequences for the freedom to link, and the functioning of the Internet in Europe. The CJEU may have — intentionally or not — invented a notice and takedown regime targeting the most fundamental mechanism of the open web: the link.

This decision arrives in an extremely worrying context in Europe. Over the last few years, Germany has tried to extend copyright protection to the display of short text fragments (‘snippets’) of freely accessible news content and Spain has imposed a levy on online services for the display of those snippets. Those measures, taken with no evidence of market failure, have undermined media pluralism, created barriers to entry and caused the shutdown of smaller publishers. Despite wide opposition (here and here), a copyright reform package including neighbouring rights for publishers – i.e., potential levies for linking/sharing (widely defined) press content, is expected as early as next week. Jointly, these two items serve the agenda of some publishing industry interests who would deal a blow to the open web.

It should be obvious by now, but it’s apparently worth repeating again – links are road signs, not communication to the public. Links should not be covered by copyright, with decisions such as this week’s GS Media making copyright more complicated for everyone and having a chilling effect on our freedom to share and access information.

European Union

DisCo is dedicated to examining technology and policy at a global scale.  Developments in the European Union play a considerable role in shaping both European and global technology markets.  EU regulations related to copyright, competition, privacy, innovation, and trade all affect the international development of technology and tech markets.