The Legalities Of Hyperlinking

Could hyperlinking become a copyright infringement? VPS looks at the first hyperlinking trial.
Hyperlinks are a cornerstone of the internet. Twitter and Facebook would be very different places without them, and so would most news or media websites. Yet a recent pan-European legal case has called into question when and where hyperlinks can be used, and whether sites linking to content published without permission are actually breaking the law.
The case in question was raised in the clumsily titled Court of Justice of the European Union, regarding a Dutch website that posted links to an Australian site hosting Playboy images without permission. Photos of a Dutch TV personality were illegally published on the Australian site, and Playboy argued the Dutch site was also guilty of copyright infringement by linking to these images.
However, in a landmark announcement earlier this month, CJEU Advocate General Melchior Wathelet concluded that sites could not be held responsible for copyright infringement on third-party sites they merely linked to, if they had no direct control over the content therein. These conclusions have the official title of an opinion rather than a ruling, but it is very unlikely that the CJEU would refuse to accept them as guidelines in future.
The Playboy case was notable because there is no European law relating to content accessed through hyperlinks. The closest precedent relates to a previous CJEU ruling in 2014 that because online content was “freely available”, a link could not be considered an infringement of copyright law. The recent opinion by Advocate General Wathelet seems to reinforce this sentiment, as well as undermining last autumn’s rumors that the European Commission was considering applying rules of ancillary copyright to owners of published material. This would enable people or firms to charge a fee for hyperlinks to their sites, potentially turning every weblink into a legal battleground.
Why does any of this matter? Quite simply, it matters because of the endless disputes and ambiguities that could arise should hyperlinks become enshrined in law. Millions of personal and commercial websites contain links to third-party sites, usually without undertaking exhaustive investigation into linked content. If a link to a webpage containing unauthorized content was deemed an infringement of copyright, would a link to the guilty website’s homepage or About Us page also be a violation? If a legal hyperlink was established in good faith, but then the destination page changed its content and fell foul of the law, would the site hosting the link be liable for not re-checking the veracity of its linked content? If so, how frequently would such checks have to be conducted for due care to be a valid defense?
Differences in international law could further muddy these already murky waters. If a British website uploaded a link to an American website whose content had been illegally republished from an Australian site, where was the crime committed? Could a case be brought in the courts of all three nations, or would the country where the infringement first occurred have jurisdiction? Should a webmaster really be expected to understand copyright law in foreign countries with separate languages and widely varying legal systems, before adding a link into a blog? Would webmasters still be charged even if their sites were hacked – leading to revenge URLs?
For now, it seems the reasonable use of hyperlinks can continue as before. For the sake of website owners and bloggers everywhere, it’s to be hoped that European copyright law won’t become any more complicated in the foreseeable future.

Stay up to date with the latest technology news by following VPS on Facebook and Twitter