Think Before You Link!: When Does Unauthorised Hyperlinking Infringe Copyright?

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 Directive1 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 19882. 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 case3 (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...