Hyperlinking on a website or social media page is very common online. It is part of what creates the World Wide Web – providing a link directly to another site or page. But can it actually be illegal?
The Court of Justice of the European Union recently released a decision in GS Media BV v Sanoma Media Netherlands BV which held that posting a hyperlink to something that infringes copyright is not itself an infringing act, provided that the link is not made for profit and is without knowledge of the infringement.
In Australia, this question was considered back in 2005 in the case of Universal Music Australia Pty Ltd v Cooper. The case demonstrated that Australian law is somewhat similar to the recent decision of the Court of Justice, although for slightly different reasons.
In Australia, linking to a site containing infringing material is not a “direct” copyright infringement (as a “communication to the public”) but, may amount to an “authorisation” of copyright infringement – i.e. authorising an infringement by someone else. It is a question of fact whether any particular link authorises a copyright infringement. Relevant issues are:
- the extent of the linker’s power to prevent the infringement;
- the relationship between the linker and the copyright infringer; and
- whether the linker took steps to avoid the conduct of the infringer.
In the Universal Music Australia v Cooper case, it was relevant that Mr Cooper benefited financially from advertisements on his website “mp3s4free.net”. The website had numerous hyperlinks to sites where infringing music recordings were made available. This is similar to the profit issue in the GS Media case above. The state of knowledge of the linker is also relevant in Australia, as in Europe.
If you receive a letter claiming that your hyperlink to a particular site involves an infringement of copyright, the safest course of action is to take the link down.