Thinking of linking? Check first – the legality of hyperlinking.
The result of recent cases mean that before posting a hyperlink, businesses may need to check if the site to which they are linking contains content which is freely available. If in connection with your business you are linking to a site which hosts pictures or other content which has been reproduced without consent from the original owner, you could face an injunction requiring you to withdraw the link, and have to pay the owner’s legal costs in bringing the injunctive action (which may be quite considerable).
Hyperlinking is an integral part of how the internet works, but there is a conflict between maintaining the openness of the web on the one hand, and protecting the interests of copyright owners on the other. The European courts in particular have been grappling with getting the balance right.
One of the key legal questions has been whether hyperlinking constitutes a “communication to the public”. EU law provides that authors (copyright owners) should have the exclusive right to control the communication of their works to the public. The “second hand” nature of linking means that the content has often already been communicated to the public, or a section of the public at least, but a hyperlink may communicate it to a new section of the public, and potentially much more widely.
Linking to “Free” Content
The first big case on hyperlinking heard before the European Court was Svensson. The Court in Svensson held that hyperlinking to content that is already freely and lawfully available online (“everyday hyperlinking”) would not usually be a communication to the public, so could be freely done. The subsequent case of Bestwater case held this was also the case for framing and embedded video. However, in the TVCatch Up case the court subsequently found that re-streaming TV programmes over the internet, when those programmes had previously been freely aired on terrestrial TV, was a breach of copyright on the basis that the difference in the method of distribution (terrestrial TV as opposed to internet) meant the streaming constituted a communication to a new public.
The question still remains as to what the position would be where, for example, the link provides free access to content on a site which usually charges a fee for access to it or usually restricts access to the content to non-commercial use only.
Linking to restricted content
The latest case, GS Media v Sanoma, considered the situation where the hyperlink was to content which had been put there illegally (without the consent of the rights holder).
GS Media published a report on its Dutch news/gossip website which linked through a file sharing site to photos of a Dutch TV personality that had been taken for Playboy by Sanoma, before Sanoma had published the photographs itself. Although the pictures were freely available on the file sharing website, they were on that site without the consent of the copyright holder, Sanoma. The photos had already been removed from 2 previous file sharing websites, but GS Media had re-linked to the new sites on which they appeared.
The European Court (the CJEU) decided in favour of the rights holder, Sanoma, and made GS Media take down the link. The conclusion of the court was that linking to the photos was a communication to the public in breach of copyright because GS Media had posted the link in pursuit of financial gain. This “pursuit of financial gain” created a rebuttable presumption (meaning they would be allowed to produce evidence to prove otherwise) that GS Media had undertaken the necessary checks to ensure that the content had not been illegally published on the website and therefore in publishing had acted in full knowledge that the rights holder may not have consented to the publication of the works. Unhelpfully, “financial gain” was not defined in the decision but is likely to include indirectly making a business more attractive, not just directly generating money for example through advertising.
Carrying out “necessary checks” may be difficult for publishers, when one considers the number of articles that are published each day on the internet, and the links each article may contain, it would be impossible to expect publishers to check all of the content to which they are linking. Also, the court did not set out exactly what the “necessary checks” would entail.
Publishers need to be aware of the potential risks of hyperlinking, and consider the way they link, particularly to content owned by those willing to put up a fight. The safest option, if possible, may be to try to get consent from the rights-holder or collecting society.
 Article 3(1) Copyright Directive (2001/29/EC) and Section 16, Copyright, Designs and Patents Act 1988
 ITV v TVCatchup  (Case C-607/11)  Bus LR 1020