Copyright breached by hyperlinking

In the UK, the right of copyright is automatic: it belongs to the creator of an original work, and there is no need to apply for it or register it.

There appears to be a widely held, and entirely incorrect, assumption that just because something is on the Internet it is free to use and redistribute.

Those who redistribute or reproduce the copyright of others can leave themselves open to legal action.

The European Court of Justice (CJEU) judgement in the case of GS Media BV v Sanoma Media Netherlands BV & Others shows just how far the courts will go in protecting copyright. The Court, in this case, ruled that a mere hyperlink to content published on a website without the author’s permission constitutes a breach of copyright.

It involved a company which added a link on its website which linked to a file-sharing website where there were images which were the copyright of a Dutch publisher and from which the images could be downloaded.

The firm refused to remove the hyperlink, which led to court proceedings. The CJEU held that the linking did not constitute ‘a communication to the public’ (which would be an actionable infringement of copyright) if the person posting the link was unaware that the content was published unlawfully.

However, the legal presumption would be that the creator of the link was aware, unless contrary evidence was adduced and if the link was posted for financial gain. In that case, the link creator would have been assumed to have carried out the necessary checks to confirm that the site on which the content sat has the legal right to publish it.

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