Are all hypertext links legal?

On 8 September last year, the Court of Justice of the European Union issued a GS Media decision fundamental to the legality of hypertext links, especially in the area of intellectual property.

The solution chosen by the CJEU sets up particularly restrictive presumptions for website publishers, which will require them to ensure that the hypertext links used on their site lead to content published in a legal manner.

Digital companies often implement a linking strategy in order to reduce their content production costs, especially at the beginning of their activity. In fact, this makes it possible to maintain a significant pace of publication and therefore a presence in relation to the public.

The multiplication of links to third party publications can therefore easily engage your responsibility because of the presumption. It is therefore particularly important to ensure that your links lead to sites that respect copyright well beforehand, and not afterwards.

The purpose of this article is to present a quick summary of the new regime applicable to hypertext links.

The publication of legal links

1. The GS Media decision is based on the criterion of the objective pursued by the person who published the link.

It seems that the aim is to distinguish between posting a link for profit or not.

The following are not considered illegal:

• Published links” non-profit ”;
• Links published by a” no one knows, and cannot reasonably know, that this work was published on the Internet without the permission of the copyright owner.”

Therefore, if a person publishes a link that directs to content that infringes the copyright of a third party, non-profit, this cannot be blamed, unless they prove that they were aware that the content was illegal. This proof may be established, for example, if the rights holder has informed him of this (” When it is established that such a person knew or should have known that the hypertext link that he placed gives access to an illegally published work”).

2. However, if the content has already been published by the rights holder, or if the copyright owner authorized its publication, it is presumed to authorize its” communication to the public ” through links, as long as the audience is not larger than the initial audience.

The public is not considered to be wider when the initial publication was made on a site open to the public.

The publication of illegal links

1. A presumption of illegality is created for all link posts made for profit. Consequently, any link to content that may relate to intellectual property and published for profit will be illegal.

It is then up to the person who published the link to prove that the content of the page in question does not infringe copyright.

This proof is particularly difficult to report in practice and requires each website publisher to ensure that all the links that appear on their own site comply with copyright. This task can quickly be incredibly complex for sites with thousands of links.

2. In addition, if the link refers to content that is published for an audience that should not have had access to the content (for example a link to content republished on a platform open to all but from a platform whose access is limited), the link will also be considered as infringing copyright.

3. The same applies if the link is distributed by a person acting on a non-profit basis but aware of the illegality of the content on the linked page.

4. The majority of links to pages that infringe copyright will thus be considered illegal and may result in the liability of the person publishing the link.

Do not hesitate to contact us if you need clarification on how this new regime will apply to your site.