Later today (2nd February), the Court of Justice in the European Union (CJEU) will hear arguments as to whether hyperlinking should or should not remain legal within the EU.
Sounds insane, right? Surely the very concept is absurd; hyperlinking contributes to the very idea of the internet as a “web”. However, as internet regulation becomes ever more complex – complicated by legislation such as the Digital Millennium Copyright Act (DMCA) – the act of hyperlinking has implications beyond simply directing an internet user to a different web page. A hyperlink could, conceivably, constitute copyright infringement.
The CJEU is adjudicating over the case of GS Media BV v Sanoma Media Netherlands BV, in which the applicant (GS Media) claims that hyperlinking could constitute a violation of copyright law, and that the act of hyperlinking could constitute “‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29”.
Sanity may prevail, though, if the previous case handled by the CJEU regarding hyperlinking is anything to go by. Around the same time last year, in the case of Svensson, et al v Retriever Sverige AB, the court ruled that if a webpage is made public online with no restriction – either by paywall or content posted without the consent of copyright holder – then it is entitled to be hyperlinked.
The grey area left by the Svensson case, though, is content that exists online without the consent of the copyright holder. For example, photo content that is improperly attributed, or leaked confidential information. The implications of this undefined area could extend beyond hyperlinking and into journalism and whistleblowing.
After arguments are heard later today, a ruling by the CJEU is expected later this year.