Navigating the tricky waters of hyperlinking

Hyperlinks play a key role in today's online world, but copyright rules can be tricky waters to navigate.

In an age where social media platforms such as Twitter, Facebook and LinkedIn are used so prevalently by both businesses and individuals, hyperlinks play a key role in allowing users of these platforms to share and comment upon digital content.

The vast majority of tweets or posts involve directing other social media users to external material such as news stories, pictures, videos and sound files, and this contributes greatly to freedom of expression and information.

For many rights holders, hyperlinks to their content on sites such as Twitter and LinkedIn can significantly increase the number of website hits, potentially leading to higher advertising revenue. However, where content has been published on the internet without the authorisation of the copyright owner, for example leaked celebrity photographs or film clips, the ability of other internet users and businesses with an online presence to hyperlink and facilitate access to such illegally published material can cause further detriment to right holders. 

This has led Europe’s highest court, the Court of Justice of the European Union (“CJEU”), to grapple with some sensitive legal issues to ensure adequate protection for copyright owners whilst preserving the public’s freedom to share information over the internet.

A Tricky Legal Terrain

The legal basis for challenging those hyperlinking to copyright protected material concerns the ‘communication to the public’ right contained within Article 3(1) of the Copyright Directive. In essence, this provides copyright owners with the exclusive right to authorise or prohibit any communication to the public of their works.

A series of high-profile cases have come before the CJEU to define the scope of what is meant by ‘communication to the public’ in the context of hyperlinking, the most recent of which being GS Media v Sanoma (Case-160/15). This concerned the leaking of photographs of Dutch TV presenter Britt Dekker that were due to be published in Playboy Magazine in December 2011. GS Media operated a site which included hyperlinks directing users to websites where these photos could be found, before they had been released, and the publisher of Playboy claimed that by posting hyperlinks GS Media infringed the photographer’s copyright.

In a landmark decision, on 8 September 2016, the CJEU ruled that the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent does not automatically constitute a ‘communication to the public’, subject to certain conditions. On the facts, GS Media were liable and the key takeaway points when hyperlinking to protected material (for example videos, pictures and news articles created by third parties) are:

  1. If the content is freely accessible and has been posted with the consent of the author, linking to this content will not in itself be an infringement.
  2. If the content is only available to a limited audience, such as paying subscribers, then posting a hyperlink which circumvents a paywall or other restriction can amount to an infringement. The rationale behind this is that the content is being made available to a “new public” that would not otherwise have had free access to the material.
  3. If there is no profit-making activity associated with posting a hyperlink, liability will only be established if the poster knew, or ought to have known, that the content being linked to was published illegally (for example owing to a notice received from the copyright owner).
  4. If a hyperlink is posted “for profit”: a. The poster will be expected to carry out “necessary checks” to ensure the content being linked to has not been illegally published; and b. If the content being linked to was published without the owner’s consent, there is a presumption that the poster had knowledge of the protected nature of the work and lack of consent. Unless this presumption is rebutted, this will be an infringement of copyright.

Avoiding the Pitfalls: What are the Practical Implications?

The practical ramifications of the GS Media decision for companies with an online presence, particularly those that profit out of sharing links to digital content, could be significant. The ruling has divided opinion, as whilst the Court undoubtedly sought to strike a fair balance between protecting the interests of right holders and preserving freedom of expression, there is uncertainty as to how this will work in practice.

Pending further guidance and clarification from the courts on the meaning of posting “for profit” and the “necessary checks” required to avoid liability, to minimise the risk of copyright infringement, businesses are best advised to:

  • Ensure that any hyperlinks posted do not provide access to material that would not otherwise be freely available (such as evading a paywall).
  • Consider carefully which websites are being linked to. If a site clearly contains infringing material, such as a film or song leaked prior to its official release, even if there is no financial motive to share a hyperlink to this material, there is a risk of infringement.
  • Respond quickly to takedown requests from right holders. Once notice has been given and knowledge is established, by continuing to link to the content, there will be a high risk of copyright infringement.
  • Contact right holders directly to seek authorisation before linking to their content.

Whilst there will inevitably be cause for concern for many businesses that use hyperlinks on a daily basis, for those that have invested time and resource into producing copyright protectable material themselves, the overall business impact may be seen as beneficial.

It is not uncommon for copyright material to be released online without the consent of the author, for example leaked specifications of new phone models or video footage of popular TV shows. The implication of the GS Media decision is that a mere notice and takedown request to a business or individual linking to the infringing material should be sufficient to require the hyperlinks to be blocked.

This will be particularly helpful in situations where the original poster cannot be located, as by removing hyperlinks this will reduce the number of visitors to the illegal sites and make it easier for content owners to police the wider dissemination of their material. However, whilst the ability to block hyperlinks will be seen as a useful development, stopping the infringing material at source is likely to remain the primary weapon for right holders.

If there is certain content that businesses are particularly sensitive about protecting from being widely disseminated over the internet, it is advisable to implement technical measures such as paywalls or web protecting software. Introducing clear terms and conditions on the website that linking is not permitted without consent may further deter hyperlinking, although this may not be commercially desirable.

What Does the Future Hold?

In an increasingly connected and cyber-dependent society, the use of hyperlinks is unlikely to slow down. Whilst GS Media has, to a certain extent, clarified the rules on linking to copyright protected material, the practical steps required to comply with such rules are ill-defined. It remains to be seen exactly how businesses profiting from hyperlinking can overturn the presumption that they were aware of the illegal publication, and further guidance from the courts will be needed to determine the precise boundaries.

In the meantime, it is likely that we will see increased enforcement activity against entities such as GS Media that make business from directing internet traffic to illegal sites, and there is no doubt that a more cautious approach needs to be taken towards hyperlinking.

However, provided that sensible checks are undertaken before linking to third party content and that takedown requests are quickly adhered to, the risk of becoming embroiled in expensive copyright litigation appears relatively low.

Tom Collins, Associate at Stevens & Bolton LLP

Image source: Shutterstock/Tashatuvango