Sharing links is one of the most common ways of exchanging online content with others. The act is so commonplace that it might seem odd that questions over its legality are still being considered.  In the highly anticipated Svensson judgment released on 13 February 2014, the Court of Justice of the European Union (CJEU) has decided that the owner of a website can use hyperlinks to redirect internet users to third parties' copyrighted content without infringing copyright.  The case involved a news monitoring service which supplied links to news articles on a number of websites.

The main proviso to the determination is that the content must be otherwise "freely available" to internet users online. Therefore, posting a hyperlink to content which is not freely available, such as content protected by a subscription, login page or pay-wall, is likely to constitute an infringement.

The reasoning behind the CJEU's decision is that hyperlinking does not result in the material being made available to any "new public".  If a copyright owner has authorised their works on one publicly available website, this will be considered an authorisation for all internet users to access the content.

Although there is likely to be future discussion about what exactly "freely available" means, the decision potentially gives rights holders a new argument against third parties providing unauthorised links to infringing copies of content – applying Svensson, the fact that content is being made available to a "new public" might make it unlawful