Article 24 February 2014

EU’s top court provides clarity on hyperlinking

If you make your content freely available on the web, others can hyperlink to it without authorisation, says EU’s top court.

Media companies, content aggregators and others in the business of spreading information on the web should take note. A recent ruling of the Court of Justice of the European Union affects your operations.

The landmark Svensson decision provides clarity on the permissibility of hyperlinking and the interpretation of what “communication to the public” means.

Does hyperlinking infringe the right of communication to the public?

In essence, the Court of Justice of the European Union (“CJEU”) held in Nils Svensson v Retriever Sverige AB (Case C-466/12) that providing hyperlinks to material available legally on a freely accessible basis on another website does not infringe the right of communication to the public within the meaning of EU law.

In this case, the original plaintiffs were Swedish journalists who wrote press articles that were published in the Göteborgs-Posten newspaper and on the company’s website, where they were freely accessible.

The defendant was a media monitoring company called Retriever Sverige AB, which operates a website that provides users with lists of clickable internet links to articles published elsewhere.

The journalists claimed that Retriever made unauthorised use of their articles by hyperlinking. Moreover, it was not apparent to Retriever’s users that they were bring redirected to another site in order to access the article.

The “new public” is the key

In analysing the case, the CJEU stated at first that the provision of clickable links to copyright-protected works does constitute an act of “communication to a public”. However, in order to infringe the right as provided in Article 3(1) of the Infosoc Directive (2001/29/EC), the communication must be directed at a “new public”. This means a public who was not taken into account by the copyright holders at the time the initial communication was authorised.

As the works had already been freely accessible to anyone on the Göteborgs-Posten website and the rightholders had consented to that initial communication, no new public was reached as a consequence of Retriever’s operations. Consequently, hyperlinking by Retriever did not infringe the communication to the public right and did not require the consent of the rightholders. The interpretation seems consistent with CJEU’s prior case law.

Interestingly, the court went on to state that no infringement would be in place even if the users who click on the link have the impression that the work is appearing on the site that contains the link (e.g. inline linking of content). The court did, however, not evaluate whether some forms of linking might constitute reproduction of the content or whether other claims could be made against the activity where an embedded link is held out as being associated with the linking site.

What are the practical implications?

The court made a distinction between material that is freely accessible on the web and access-restricted material: if access to the original material had been restricted and the hyperlinks would have circumvented those restrictions, there might have been a new public. In practice, this seems to imply that in order to effectively limit the exploitation of their material in the form of hyperlinking, content owners should restrict access to it.

But developments in this issue continue, so stay tuned.

The Svensson decision will be followed by two further CJEU decisions this year that will further clarify the scope of the right of communication to the public with regard to linking in the form of embedded videos, embedding unauthorised material and circumventing access restrictions.

We will discuss the Svensson case and its follow-up in more detail in a morning seminar held on 25 March at the Krogerus office at Unioninkatu 22, in Helsinki.

Please note our morning seminars are presented in Finnish. Feel free to register here: Lakisääteiset aamukahvit

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