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Permission to link freely?

The highest court in the EU is now hearing arguments in a landmark case that could see all hyperlinks subject to new permissions-based regulations. Read more to find out how that will impact your right to link.

If you live in the European Union (EU), you could soon see new restrictions on hyperlinking online. At best, these new rules will effectively render this critical building block of the Web useless. At worst? They could turn every link you post or encounter into a legal landmine.

Even if you don’t live in the EU, your online interactions will still be affected. Links will disappear, and that interconnected highway system we use to travel the Web will become a mess of detours and dead ends.

What could cause such a fundamental shift in the way we explore the Web?

Today, the Court of Justice of the European Union (CJEU) – the EU’s highest court – began hearing arguments on a case about hyperlinks and copyright infringement. The GS Media caseis trying to answer this key question: If someone posts a link to something that infringes copyright – something for which they do not have the permission of the rightsholder – is that in itself copyright infringement?

It’s worth noting that the CJEU’s decisions are binding on all EU countries, meaning this is a case that will have widespread impact and is one we should all be watching very closely.

But first, let’s go back a bit and set the scene.

This isn’t the first time questions about the nature of hyperlinking and copyright have reached the CJEU. Some of you may know about the Svensson case that wrapped up at the CJEU in early 2014 (read the full ruling here), which aimed to determine if linking to a copyrighted work online infringed copyright. This case was brought by a journalist who sued an aggregator for posting a link to his work – even though his work was freely available elsewhere online. It wasn’t behind a paywall, and people on the Web could have found it if they wanted. 

In this case, the court ruled that because the link was not communicating the article to a “new public,” it was not copyright infringement because the content was already available online, this link was just pointing people to it.

No harm, no foul.

Let’s pause here to draw a parallel to another issue OpenMedia has been paying close attention to: ancillary copyright – or, as we like to call it, the “link tax.” We’ve been talking about this issue for the past several months now, as we are seeing a renewed push to implement rules that would require aggregators to pay a fee to link to material freely available elsewhere online. However, a clear reading of the Svensson case shows us that this ancillary copyright has already been determined by the highest court as unnecessary; simply pointing at content already on the Web is not copyright infringement.

So back to the case at hand.

Today’s GS Media case is slightly different, because it deals with content that was not freely available elsewhere online. In this specific instance, a Dutch blog posted links to photos intended for publication in a Dutch version of Playboy, but had not yet been made publicly available. These photos were leaked on an Australian server, and then the Dutch blog linked to them.

If this case were about the person who posted the photos in the first place, it would be much more simple. They published copyrighted content without permission of the rightsholder. But because the case is about a link to that content, it becomes exponentially more complex, and much more dangerous to legislate around.

How could this break the Web?

If the CJEU determines that this hyperlink infringed copyright, we could all be in for big trouble. As we all know, links are the very foundation of the Web. Every day, we all create links without thinking twice. Post to Facebook, Twitter, or your blog, and you've created a new link.

Can you imagine if you had to check every time you shared a link to ensure that none of the page’s content infringed copyright? How would you know? And would you check back every day to make sure that the content hadn’t changed? What if you link to a site that has a comments section, and someone posts something of concern there?

Even scarier yet – what if you post a link to a page that infringes copyright, and your link is determined to be an infringement as well? Does every link that links to your page also infringe copyright? They are providing a direct route to something that has been determined as copyright infringement.

What you’re left with is an infinite regression of illegal links, effectively breaking the backbone of the Web as each link is severed or determined illicit. It’s never-ending.

The trade in “illegal links” would be all-consuming.

What could this mean for the global Web?

We have to consider not only what this means for people in the EU – serious problems – but also what this means for global ecosystem and infrastructure of the Web. The CJEU has jurisdiction over all EU countries, but the effects of this decision will be felt around the world

This ruling will also apply to any links that are aimed at Europeans or accessible in Europe, meaning that the wider Internet will be caught up in the dragnet. Aside from questions of how this could possibly be enforced, this ruling could serve as a huge killer of online innovation, as new startups and services (not to mention our existing favourites) would be saddled by huge legal liability if anyone wanted to post anything on their platforms.

Many of our favourite platforms are cross-border, and that’s what makes them so great – the ability to connect with people around the world at the click of a button, or a link.

One final thought I will leave you with: what does this mean for journalism, whistleblowers and the public interest?

In this case the CJEU will certainly be wrestling with the question of intention. Put simply: did the creator of the link know the link was pointing to infringing material? Did they do this on purpose?

While this is an important distinction to make, it’s equally important to recognize that there are circumstances in which we would not want to restrict even willful leakers from posting content. In fact, we know that journalists and whistleblowers regularly raise concern over issues that are meant to be secret, but do so for the public good. Would we see an exception for this?

In closing

This case is critical for the future of our right to link freely online.

What will be the most difficult for the court is The Court’s biggest challenge will be teasing out how this ruling could affect everyday Internet users and the way we already use the Web – not just copyright infringers. To combat a potentially disastrous ruling for the future of the open Internet, it’s essential that we all understand what’s at stake.

We will continue to watch this case closely, and keep you informed of if and how you can speak up on this critical issue.


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