Case Focus: Hyperlinking and Embedding of Content

The CJEU judgment in GS Media considers whether hyperlinking to freely accessible, but unauthorised content constitutes a "communication to the public" within the meaning of the Infosoc Directive.

The CJEU judgment in GS Media considers whether hyperlinking to freely accessible, but unauthorised content constitutes a "communication to the public" within the meaning of the Infosoc Directive, and therefore possible copyright infringement.

Two cases from 2014 have helped to shape the law in this area: Svensson held that a website which hyperlinked to protected works that were freely available online (i.e. could be accessed by anyone using the Internet) did not infringe copyright in the works. In Bestwater, a website that embedded copyright protected content in its website by framing technology was not deemed to be copyright infringement for similar reasoning to Svensson - because the content was freely available. The CJEU ruled that unless the original publisher used technical access restrictions, embedded content would not reach the requisite "new public". The cases left open the situation, however, where the author had not approved his work to be put online in the first place, even if it was freely accessible to all Internet users. 

GS Media addressed this issue confirming that the reasoning in Svensson and Bestwater was only intended to relate to the posting of hyperlinks to works which were made freely available on another website with the consent of the rightsholder. It could not be inferred from those decisions that hyperlinking to unauthorised content was excluded from the concept of communication to the public. The CJEU ruled that hyperlinking to unauthorised content does constitute a "communication to the public" where the Internet user setting the hyperlink knows or should know that the work has been published illegally or where it does so for financial gain. Importantly, rights holders can still bring an action if the knowledge element is satisfied but the hyperlinker is not pursuing personal gain.

Generally, the GS Media decision appears reassuring for rights holders as it shifts the burden of proof onto the person setting the hyperlink or embedding the content. Further, a cease and desist notice should now mean that a hyperlink is taken down because the hyperlinker is on notice, and notice / knowledge is key.

In spite of this protection, rights holder that upload content onto their website or video sharing platforms such as YouTube are advised to consider the following steps to help prevent copyright infringement of their work:

• In the terms of use on your website, make it clear that reproduction of content is unauthorised without your consent
• When / if authorising a third party to share the content on the third party's website by hyperlinking or embedding to your material, ensure that your consent is given unambiguously and clearly
• Ensure any advertisements are maintained on the embedding website so that you continue to benefit from this revenue stream 
• Consider setting up a paywall to prevent internet users from accessing your website without a paid subscription (albeit this might be disproportionately restrictive)