Introduction
Hypertext links are central to the functioning of the Internet. They make it possible to direct users to an article, photograph, video or any other content published on a third-party website.
However, creating a hypertext link is not always neutral from a copyright perspective. Since 2014, the Court of Justice of the European Union has progressively clarified the circumstances in which a link may constitute an act of “communication to the public” requiring the authorisation of the right holder.
The principle of freedom to create hypertext links
In its Svensson decision of February 13, 2014 (C-466/12), the Court of Justice of the European Union held that creating a clickable link to a protected work that is already freely accessible on another website with the authorisation of the right holder does not require further authorisation.
Admittedly, providing the link enables Internet users to access the work. However, it does not target a “new public”. Where content is freely accessible online, the right holder is deemed to have taken all Internet users into account as the potential public.
A website may therefore, in principle, provide a hypertext link to a work that is freely and lawfully accessible on another website. This approach preserves the normal functioning of the Internet, which largely relies on the circulation of information through hypertext links.
The position is different where the hypertext link leads to a work that has been made available online without the authorisation of the right holder.
In its GS Media BV v Sanoma Media Netherlands BV decision of September 8, 2016 (C-466/12), case ECLI:EU:C:2014:76, the CJEU held that such a link may constitute a communication to the public where the person who created it knew, or ought reasonably to have known, that the content had been published unlawfully.
The Court notably distinguishes between hypertext links published without a profit-making purpose and those made available in the course of a commercial activity.
Where a person creates a hypertext link without pursuing a profit-making purpose, it is necessary to determine whether that person was aware of the unlawful nature of the initial publication. The liability of the author of the link is not automatic. The risk nevertheless becomes significant where the person posting the link knows that the content is unlawful, has been informed of its unlawful nature by the right holder, maintains the link despite receiving a substantiated takedown request, or enables users to circumvent an access restriction.
Where a hypertext link is published in the course of an activity carried out for profit, the Court adopts a stricter approach. The person posting the link is presumed to have carried out the necessary checks and to have been aware that the initial publication may have been unlawful. This presumption may be rebutted, but it requires the professional operator to demonstrate that it could reasonably believe that the content had been published with authorisation.
The commercial nature of the website is not, in itself, sufficient to establish counterfeiting. It is nevertheless an important factor where the hypertext link is used to attract traffic, generate advertising revenue or facilitate access to manifestly unlawful content.
Circumvention of access restrictions
Even where a work was initially published with the authorisation of its author, a hypertext link may require authorisation if it makes the work accessible to a public that was not taken into account when it was first made available online.
This may be the case where the link circumvents a subscription, a paywall, an authentication system, a restriction limiting access to certain users or a technological protection measure.
In such circumstances, the hypertext link makes the work available to a “new public” and may therefore constitute a communication to the public.
A distinction must accordingly be drawn between a simple link to a freely accessible page and a link that neutralises a restriction effectively implemented by the right holder.
Framing and the embedding of third-party content
Framing consists in embedding content from another website into a webpage without necessarily creating a new copy of that content. A photograph or video may therefore appear directly on a third-party website while technically remaining hosted on the original website.
In its BestWater order of 2014, the CJEU accepted that a freely accessible work could, in principle, be embedded by means of framing, provided that it was neither communicated using a different technical means nor made available to a new public.
The Court subsequently clarified this approach in its VG Bild-Kunst decision of March 9, 2021 (C-392/19). Where the right holder has adopted or imposed technological measures intended to prevent framing, circumventing those measures constitutes a communication to a new public and therefore requires authorisation.
In practice, the direct embedding of content on a third-party website may therefore create greater legal risks than a simple clickable hypertext link clearly redirecting the user to the original website.
Services Facilitating Access to Unlawful Content
European case law is not limited to individual hypertext links. It also takes into account the role played by persons or services that organise, facilitate or encourage access to protected content made available without authorisation.
In the Filmspeler decision of April 26, 2017 (C-527/15), the Court held that the sale of a multimedia player preconfigured with links to unlawful streaming websites constituted a communication to the public. The seller deliberately intervened to enable its customers to access protected works easily.
In the Pirate Bay judgment of June 14, 2017 (C-610/15), the Court also held that the operation of a platform facilitating the location and sharing of protected works could constitute a communication to the public. The administrators did not necessarily upload the works themselves, but they played an essential role in making them available.
The distinction between a purely technical intermediary and an operator actively participating in the distribution of unlawful content is therefore decisive.
The liability of online platforms
In the joined YouTube and Cyando cases of June 22, 2021 (C-682/18 and C-683/18),the CJEU clarified that the operator of a platform does not automatically carry out a communication to the public each time a user unlawfully uploads a protected work.
Its liability may nevertheless arise where, beyond merely providing the platform, it contributes to giving the public access to unlawful content.
This may notably be the case where the operator knows that protected content is unlawfully available and fails to remove it promptly, participates in its selection or promotion, provides tools specifically designed to facilitate its sharing, or adopts a business model that encourages copyright infringement.
This case law must now be considered together with the specific obligations applicable to online content-sharing platforms.
Precautions to take before publishing a hypertext link
Creating a hypertext link to protected content is not prohibited as a matter of principle. However, prior checks remain advisable, particularly in a professional context.
It is notably appropriate to verify:
- that the content is freely accessible;
- that the original website appears legitimate;
- that the work appears to have been published with authorisation;
- that the link does not circumvent any restriction;
- that the content is not embedded in breach of an anti-framing measure;
- and that no takedown request has been received.
Conclusion
The principle remains that hypertext links may freely be created to content that is freely and lawfully accessible.
That freedom is nevertheless subject to limits where the link knowingly leads to unlawful content, circumvents an access restriction, neutralises a technological measure or actively contributes to the distribution of infringing works.
The lawfulness of a hypertext link therefore depends on its context, the origin of the content, the purpose pursued and the role actually played by the person posting it.
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Q&A
Is authorisation required to link to the homepage of a website?
In principle, no. A hypertext link to the homepage of a freely accessible website generally does not require authorisation, provided that it does not create confusion as to the existence of a partnership or commercial relationship.
Should a link that subsequently becomes unlawful be removed?
Yes, once the person who posted the link becomes aware of the change in circumstances. A link that was initially lawful may become problematic if the destination content is modified or replaced with unlawful content.
Can a link to a foreign website give rise to liability in France?
Yes. The location of the target website is not, in itself, sufficient to exclude the application of French law, particularly where the link is published on a website aimed at the French public or where the harm is liable to occur in France.
Does removing the link eliminate all liability?
Prompt removal may reduce the risk, but it does not necessarily erase an infringement that has already occurred. The circumstances, duration of publication and knowledge of the unlawful nature of the content may still be taken into account.
Does a shortened link create any particular risk?
Using a shortened hypertext link is not prohibited. However, it may conceal the actual destination and make it more difficult to identify the website concerned. A transparent presentation is therefore preferable.
This publication is intended for general public guidance and to highest issues. It is not intended to apply to specific circumstances or to constitute legal advice.