Hyperlinks and Copyright – What is the position?

Many websites contain hyperlinks to third party content but how many of these have actually sought consent from the owner of the third party website to provide that link? Is consent needed from the owner of the third party website or from the owner of content that is accessed via a hyperlink?

With the increased prevalence of the internet in our daily lives, it is becoming more important to think about what we publish on our own websites and in our communications. There has been little clarity in this area in previous years but Attorney General Wathelet has recently given his opinion in the appeal case of GS Media v Sanoma Media Netherlands BV and others. This case relates to a report on a Dutch website hosted by GS Media which had a hyperlink to ‘FileFactory’, which is a third-party Australian-hosted file storage site containing unpublished photographs of a Dutch TV presenter from a photo-shoot for Playboy magazine which had been made available without the consent of Sanoma.

Sanoma (on behalf of Playboy) brought proceedings against GS Media for copyright infringement which was upheld in the first instance. On appeal, the Dutch Supreme Court referred questions to the European Court of Justice and asked whether there had been a new “communication to the public” by providing a link to the content on FileFactory.  Although the Attorney General’s comments are not binding, the opinion gives a strong indication as to where the Court’s decision would lie.

The Attorney General’s response can be summarised as:

  • Posting a hyperlink to another website does not amount to an act of ‘communication to the public’, where those copyrighted works are freely available to the public i.e. not behind a paywall
  • It is not important whether the person posting the links is, or ought to be, aware that the copyright holder had not given permission to the publication of the works in question and
  • Where the link merely facilitates access to works that, although protected by copyright, are freely accessible to the public, this does not constitute a ‘communication to the public’

This response could be seen as weakening a copyright holder’s rights in their works; however, it will provide some comfort to website owners that there is no requirement for prior consent to be obtained before providing a hyperlink to third party content freely available on another website. Of particular note in this case is that FileFactory did not itself have permission to publish the photographs in question (and had also asked GS Media not to link to the content) but the Court was still of the opinion that GS Media’s hyperlink had not made a new “communication to the public” and the posting of the hyperlink did not constitute copyright infringement.

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