Hyperlinking in the EU: balancing freedom of expression with protection of copyright and reputation without breaking the internet

1. The importance of hyperlinking

As we have made increasing use of the internet as the medium through which we communicate, socialize, and consume news and popular culture, the use of hyperlinks to help users navigate and share the vast amounts of con­tent on the internet has grown exponentially. Most blog and social media posts and, increasingly, news articles in­volve directing users, via hyperlinks, to external material such as other news stories, blog posts, pictures, videos, and sound files. Hyperlinks allow flexibility and facilitate freedom of expression.

For copyright owners hyperlinks that connect internet users to their works can be central to the desired exploitation of the work and/or drive web traffic that in­creases advertising revenues. However, the way we now consume and share information on the internet has given rise to legal issues and tensions between fundamental legal rights and freedoms. Hyperlinks, which can provide large numbers of people with access to copyrighted mate­rial, can cause such rights to be infringed on a grand scale in a very short period of time, but there is an understand­able desire on the part of the courts to avoid unduly bur­dening the free flow of information on the internet or cre­ating a chilling effect on journalism. In recent years Euro­pean courts have addressed several disputes implicating the balance between freedom of expression and freedom of the press, on one hand, and the ability of rights holders to control the exploitation of their works and the right to reputation, on the other.

2. Legal Framework
   A. Copyright

A body of case law has been developed in Europe in recent years that clarifies the extent to which the poster of a hyperlink to copyright material may be liable for copyright infringement. These cases have focused on the circumstances in which the posting of a hyperlink can be considered a “communication to the public” within the meaning of Article 3(1) of the EU Copyright Directive,¹ which provides copyright owners with the exclusive right to authorize or prohibit any communication to the public of their works.

One of the high-profile cases to come before the Court of Justice of the European Union (CJEU) was GS Media v. Sanoma,² in which photographs of Dutch TV presenter Britt Dekker that were due to be published in Playboy magazine in December 2011 were illegally leaked online prior to their official publication. GS Media oper­​ated a website that included hyperlinks directing users to websites where these photos could be found before they had been officially released. The publisher of Playboy claimed that by posting such hyperlinks, GS Media had infringed the photographer’s copyright.

In a landmark decision issued on September 8, 2016, the CJEU ruled that the posting of a hyperlink to works protected by copyright and published without the au-thor’s consent does not necessarily constitute a “com­munication to the public,” subject to certain conditions being fulfilled. The CJEU stressed that an individualized assessment was required in each case and concluded that, in making such an assessment, the following points were key:

1. If the content is freely accessible and has been posted with the consent of the author, linking to this content will not in itself be an infringement.
2. If the content is only available to a limited audi­ence, such as paying subscribers, then posting a hyperlink that circumvents a paywall or other restriction can amount to an infringement. The rationale behind this is that the content is being made available to a “new public” that would not otherwise have had free access to the material.
3. If there is no profit-making activity associated with posting a hyperlink, liability will be established only if the poster knew, or ought to have known, that the content being linked to was published ille­gally (for example, owing to a notice received from the copyright owner).
4. If a hyperlink is posted “for profit” then:

1. the poster will be expected to carry out “nec­essary checks” to ensure that the content being linked to has not been illegally published; and
2. if the content being linked to was published without the owner’s consent, there is a presump­tion that the poster had knowledge of the protected nature of the work and lack of consent. Unless this presumption is rebutted, the linking will be copy­right infringement.

The court held that GS Media was liable because it had been notified by Playboy that the photographs it was providing links to had been published online illegally. This knowledge, the court held, brought GS Media’s hyperlinking within the meaning of a “communication to the public.”

In April 2017, the CJEU gave judgment in Stichting Brein v. Jack Frederik Wullem.³ This case, referred from the Dutch courts, concerned the sale of multimedia players with add-ons containing hyperlinks that enabled purchas­ers to view content that infringed copyright (in particular, films, series, and live broadcasts published on streaming websites without the consent of the rights holders). The court followed the approach it had set out in GS Media, applying an “individualized assessment” and finding that there had been an act of communication to a “new public” so as to amount to a communication to the public within Article 3(1) of the Copyright Directive. In this context the court noted that:

1. The defendant’s conduct was an intervention that created a direct link between websites containing works that infringed copyright and purchasers of the multimedia players without which it would be difficult for such persons to view the unlawful content.
2. The multimedia players had been purchased by a significant number of people, and the communi­cation was aimed at an indeterminate number of people, since anyone with an internet connection could in theory purchase and make use of the hy-perlinks embedded in the add-on to the player.
3. The communication was to a “new public” not en­visaged by the copyright owner at the time of pub­lication of the work. In a helpful insight into how the criteria set out in GS Media are to be applied, the court noted that (a) the defendant had acted with full knowledge that the content linked to was unauthorized and unlawful (the multimedia play­ers were even advertised with such functionality as a selling point) and (b) its actions were carried out with a view to making a profit.

As these rulings show, European courts have been interpreting the law broadly in favor of rights holders. In developing this case law the CJEU has been faced with the need to draw a balance between the idea that hyperlinking is fundamental to the “freedom of the internet,” on the one hand and, on the other, the need to protect copyright holders in line with the European Union’s policy principle of a high level of protection for intellec­tual property rights. Traditionally, the question of primary liability for copyright infringement has—at least under English law—largely been a question of strict liability. Knowledge has come into the equation mainly in rela­tion to secondary infringements such as possessing and dealing and liability for damages. The CJEU’s approach in GS Media and Stichting Brein, by contrast, introduces a framework in which the hyperlinker’s knowledge of whether the content linked to is infringing is key to pri­mary infringement and in which the purpose of the act of linking (for profit or not for profit) is central to potential infringement. Some would argue that this approach has introduced unwelcome uncertainties: When is linking “for profit”? When have I done enough to check that the content is authorized? Others, including many global busi­nesses, may welcome the fact that the CJEU has provided a fairly comprehensive framework for hyperlinking to copyright content that is harmonized across at least 27 Member States.

B. Defamation

As well as considering the issue of the extent to which the poster of a hyperlink to copyright works may incur liability for copyright infringement, courts in Europe also have recently heard cases that concern the potential liability for hyperlinking to other unlawful con­tent such as defamatory statements.

The question of whether the poster of a hyperlink that takes a user to defamatory content elsewhere on the internet can be held liable for defamation arose in the case of McGrath and another v. Dawkins and others.⁴ This case concerned allegedly defamatory comments posted on Amazon and on the forum section of a web-site (richarddawkins.net) connected to the well-known scientist and outspoken atheist Richard Dawkins and his Foundation for Reason and Science. The .net website was operated by a U.S. company that was not involved in the case. However, the Foundation operated another website (richarddawkinsfoundation.org) the ‘Home’ button of which linked to the .net site, specifically to the index to the forum section, without making it clear to the user that they were now on the .net website. Although this was a decision on a summary judgment application, it is significant that the court confirmed that there are circum­stances in which the operator of a website can be liable for defamatory postings on a website to which it links even though it published no defamatory words itself. Of note in this case were the facts that the two websites were closely related and that the operation of the hyperlink was not obvious to the user of the .org website.

Further guidance has been provided more recently in Magyar Jeti v. Hungary.⁵ This case concerned a popular Hungarian online news portal, 444.hu, operated by Mag­yar Jeti Zrt, which in 2013 published an article reporting on an incident in which a group of apparently intoxicat­ed football fans on their way to a match in Romania had stopped at an elementary school in the town of Konyár and behaved abusively and threateningly towards the mostly Roma children who attended the school, includ­ing making racist comments. The report included a link to a YouTube video of an interview conducted in the wake of the incident with a Roma community leader who stated in the video that the men in question were members of the Jobbik political party, a Hungarian party known for its right-wing views. The 444.hu article did not endorse or repeat the comments made in the You-Tube video or mention Jobbik. The Jobbik political party sued the Roma community leader and various media organizations that had linked to the video, including Magyar Jeti, for defamation.

The case made its way through the domestic Hun­garian courts. The first instance court found that the Roma leader had defamed Jobbik by falsely stating that the abusive football fans were members of Jobbik. The court held Magyar Jeti “objectively liable” (i.e., strictly li­able) for defamation, since it had disseminated informa­tion consisting of an injurious falsehood (as prohibited by the Hungarian Civil Code). In coming to its decision, the court did not take into account the intent of Magyar Jeti in posting the hyperlink or whether it was done with knowledge that potentially defamatory content was contained in the YouTube video. Nor did the court take freedom of expression into account.

Magyar Jeti appealed, arguing that simply providing a hyperlink cannot be grounds for such liability. How­ever, the Court of Appeal reiterated the lower court’s finding that an entity that disseminates information is legally responsible for such content being made available to the public.

Magar Jeti complained to the Supreme Court and to the Constitutional Court of Hungary, arguing that this legal obligation effectively made it impossible for media organizations to report on controversial issues, since they bear the burden of confirming the veracity, beyond any doubt, of every third-party comment in­cluded within a report. They also argued that the judicial practice was unconstitutional, since it did not examine whether the publisher’s conduct had been in compliance with ethical and professional rules of journalism, only whether it had disseminated an untrue statement. The Constitutional Court dismissed the complaint on 19 De­cember 2017, emphasizing the Court of Appeal’s finding that providing hyperlinks to content amounts to dissemi­nation of facts.

Having exhausted all available domestic remedies, Magyar Jeti took its case to the European Court of Hu­man Rights (ECtHR) on the ground that the judgments of Hungary’s courts violated its right to freedom of ex­pression under Article 10 of the European Convention on Human Rights.

Article 10 states:

1. Everyone has the right to freedom of expression. This right shall include free­dom to hold opinions and to receive and impart information and ideas without interference by public authority and re­gardless of frontiers. This Article shall not prevent States from requiring the licens­ing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibili­ties, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disor­der or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in con­fidence, or for maintaining the authority and impartiality of the judiciary.

Magyar Jeti argued that hyperlinking in itself did not convey or communicate any information but merely point­ed to its existence. Further, it pointed out that the standard applied by the domestic courts would have entailed liabil­ity even if the owner of the hyperlinked website modified the webpage to include defamatory material originally not present. With regard to the balance of rights, Magyar Jeti argued that its right to freedom of expression should pre­vail over Jobbik’s right to reputation for various reasons, including:

1. The hyperlink appeared in a balanced news report on a matter of public interest.
2. Including hyperlinks is a technique of reporting
   that should remain available to journalists.
3. The judgments of the Hungarian domestic courts on this issue are likely to have far-reaching implica­tions for the press when producing online journal­istic content.
4. Automatic liability meant that journalists would likely refrain from including hyperlinks in reports, which would restrict the cross-referential structure of the internet and users’ access to information.

1. Hyperlinks, used to help internet users navigate between information, are essentially different from traditional acts of publication.
2. Use of a hyperlink does not involve exercising control over the content linked to, which can sub­sequently be altered by the person or entity with control of the linked website.

In the circumstances presented, therefore, the ECtHR criticized the Hungarian Courts for imposing strict liabil­ity in the case of hyperlinking. It agreed with the need for an individual assessment in each case as to whether the posting of a hyperlink gave rise to liability, and it identi­fied the following relevant issues:

1. Did the journalist endorse the impugned content?
2. Did the journalist repeat the impugned content (without endorsing it)?
3. Did the journalist merely hyperlink to the im­pugned content (without endorsing or repeating it)?
4. Did the journalist know or could she reasonably have known that the impugned content was de­famatory or otherwise unlawful?
5. Did the journalist act in good faith, respect the eth­ics of journalism, and perform the due diligence expected in responsible journalism?

In this case the Court noted that the 444.hu article simply mentioned that an interview with the Roma com­munity leader could be found on YouTube and provided a means to access it through a hyperlink, without com­menting on, or repeating, the interview itself. The Court also noted that no mention was made of Jobbik in the 444.hu article and that nowhere in the article did the author suggest the statements accessible through the hy-perlink were true or that he approved them or accepted responsibility for them.

Judge Pinto de Albuquerque wrote a concurring opinion in which he elaborated on the court’s reasoning, concluding as follows:

In sum, the Web is not intended, as a technology, to function in the way the respondent Government states, where spreading information via a hyperlink is itself always a “thought-content.” This approach begs the question of how people are to convey information across the estimated trillions of webpages in existence today and countless future pages if doing so can give rise to liability. It is too burdensome, and in many cases impossible, for people to make a legal de­termination as to whether each and every hyperlinked content is defamatory or oth­erwise unlawful. If such a burden were to be imposed automatically on journalists, by way of an objective liability regime, it would stifle the freedom of the press. To paraphrase the words of Berners-Lee, hyperlinks are critical not merely to the digital revolution but to our continued prosperity—and even our liberty. Like democracy itself, they need defending. It is indeed remarkable that, by finding a violation of Article 10 of the Convention, the present judgment has done just that.

III. Implications and Conclusions

All of these cases confirm that there are circumstances in which liability may exist for posters of hyperlinks to unlawful content. Liability is not strict but depends on an assessment of the individual circumstances, and these may include the manner in which the linking is carried out (particularly whether it is hidden) and the linker’s purpose (for example, whether it is a commercial situa­tion). Magyar Jeti raises the important question of whether imposing liability for links impinges too far on the human rights of the posters and is generally undesirable as hav­ing too chilling an effect on journalism and curtailing the potential of the internet to connect people to information. We are unlikely to have heard the last of the human rights question, both in the defamation and in the copyright sphere, where a number of recent cases at EU level have considered the balance between copyright protection and fundamental rights.⁶

The clear practical lesson from all this is that care must be taken when posting hyperlinks. Posting links to avoid paying for content bears obvious risks, as does posting links to content which is known to be—or which is obvi-ously—unlawful. From the internet service provider’s side it is essential to comply promptly with any takedown re­quests unless there are clear reasons for challenging them, and you are potentially prepared to litigate.

Endnotes

1. Copyright Directive (2001/29/EC).
2. GS Media BV v. Sanoma Media Netherlands BV (C-160/15) EU:C:2016:644.
3. Stichting Brein v. Jack Frederik Wullems, Case C-527/15, 26 April 2017.
4. McGrath and another v. Dawkins and others [2012] EWHC B3 (QB).
5. Magyar Jeti Zrt v. Hungary (Application no. 11257/16) (4 December 2018).
6. See, e.g., AG’s Opinions in Pelham GmbH and another v. Ralph Hütter and another C-476/17 in relation to music sampling and Funke Medien NRW GmbH v. Federal Republic of Germany C- 469/17 in relation to the use of copyright by the state to protect confidential information.