Are all hyperlinks legal? The CJEU GS Media framework
GS Media ruling, presumption of knowledge, for-profit linking: the legal regime governing hyperlinks and copyright.
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On 8 September 2016, the Court of Justice of the European Union delivered its GS Media ruling, a landmark decision on the legality of hyperlinks in the context of intellectual property. The ruling establishes demanding presumptions for website operators, who must ensure that the links on their site direct to lawfully published content.
The GS Media ruling distinguishes according to the purpose pursued by the person posting the link. Links posted on a non-profit basis are not considered unlawful, nor are links posted by a person who does not know, and cannot reasonably be expected to know, that the linked content was published without the copyright holder’s authorisation.
Where the content has already been published or authorised by the rights holder on a publicly accessible website, its communication to the public through links is presumed authorised, provided the audience is not wider than the original audience.
A presumption of unlawfulness applies to for-profit links directing to copyright-infringing content. The burden then shifts to the person who posted the link to prove that the content does not infringe copyright — a particularly difficult burden for sites containing thousands of links.
A link is also unlawful if it targets content intended for a restricted audience (paid or access-limited content republished on an open platform), or if it is posted by a person acting on a non-profit basis who is aware of the illegality of the content. For the related liability regime, see the article on hosting provider liability. For an overview, see the intellectual property services page.
The GS Media ruling requires website operators to exercise heightened vigilance over the links they publish, particularly where they act for profit. Best practice is to verify in advance that linked content has been lawfully published. If you have questions about the compliance of your linking strategy, book a call.
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