Hyperlinking from or to your website – what is and is not permissible

In the case of Svensson and Others v Retriever Sverige AB, the CJEU examined the legality of clickable hyperlinks on one website to third parties’ freely available content on another website. The issue was whether the link constituted an ‘act of communication to the public’ that needed to be authorised by the copyright holder within the meaning of Article 3(1) of the Information Society Directive 2001. The Court held that while the links did amount to a communication of the copyright works to the public, they were not communicated to a ‘new public’ and thus did not infringe copyright. Had the links circumvented restrictions on access to the original works, that would have amounted to communication to a ‘new public’ and thus infringed, but that was not so on the facts of the present case. Consequently, website owners may hyperlink to content on other websites provided it has no access restrictions. It is still advisable, however, to exercise caution when doing so. As well as seeking to avoid other potentially illegal content, you must avoid linking that circumvents content access restrictions as this could infringe copyright in the content.

In the case of Svensson and Others v Retriever Sverige AB (13 February 2014), the CJEU examined the meaning of Article 3(1) of the Information Society Directive 2001 as to whether the act of providing clickable links to protected works on another website constituted an act of communication to the public. The applicants in the proceedings had written press articles published in a Swedish newspaper and freely available on the newspaper’s website. Retriever Sverige operated a website that provided its clients with lists of clickable internet links to articles published on other websites.

‘Act of communication’ needs to be construed broadly, the Court held, so that even ‘making available’ the content was sufficient, whether or not users accessed it. Thus, this part of the requirement was satisfied on the facts of the case.

The communication also needed, however, to be to a ‘new public’, i.e. a public not taken into account by the copyright holders when they authorised the initial communication to the public (see the earlier CJEU decision in ITV Broadcasting and others). The Court concluded that the links did not make the works available to a new public because the initial communication had targeted all internet users and therefore the links were not an act of communication within Article 3(1).

If the link were to enable users to circumvent restrictions placed on accessing the content on the third-party website, then that would be a different matter and would constitute communication to a new public.

Finally the Court held that Member States could not provide for wider protection over the activities listed in the relevant provision because that would be bound adversely to affect the functioning of the internal market.

The decision, while consistent with other recent CJEU jurisprudence, leaves some crucial matters unclear for website owners. For example, what constitutes an access restriction? Are we just talking about technological restrictions or could terms and conditions published on the website be relevant restrictions which the hyperlink may be circumventing? Website owners also need to be wary that the content they link is not itself infringing copyright or in some other way illegal, thus potentially exposing them to legal liability.