Hyperlinking Chaos?!?! – The State of Hyperlinking Liability in the European Union and the United States

The Court of Justice of the EU's decision on hyperlinks creates liability for a communication to the public. The US laws generally allow more flexibility and do not create liability for hyperlinking.
October 16, 2016

“Google” is now a verb.  Everyday people say, “I’ll just Google that” or “don’t ask me … look it up on Google!”  Over 3.5 billion searches are conducted a day on Google, and each search connects users to hundreds if not millions of hyperlinks that act as gateways to the website of your choosing. [1] Clicking on hyperlinks seems to be a natural part of our internet culture and almost like a necessity if not a right.

The Court of Justice of the European Union may change how Europe views hyperlinks.  On September 28, 2016, the Court of Justice of the European Union ruled that websites may be liable for hyperlinking if they link to another website containing copyright infringing material in GS Media v. Sanoma.  [2]  For websites that do not earn a profit from linking, the court held that a website is liable if it knew or reasonably should have known it was connecting users to infringing material.  [3]  However, if the website profits off linking to an infringing website, the court automatically assumes that the website knew or should have known of the infringement and is therefore liable. [4]  The court based its decision on whether there was a “communication to the public.” [5]  The court limited liability if the hyperlink does not provide the link to any new users.  [6]  In the case, the Dutch website Geenstijl continued to find copyright infringing pictures that were set to appear in a future Playboy issue.  [7]  Each time the infringing pictures were removed from one website, Geenstijl found new hyperlinks to the illegally posted pictures.  [8] The court held that Geenstijl knowingly continued to seek out the illegal content for a profit despite continuous objections by Sanoma, the owner of Playboy.  [9]

Are our links in jeopardy?  For browsers in the United States, users can remember one simple fact: this is a decision from the European Union.  Therefore, users in the United States can feel free to link and click away to their hearts content.  Generally, the United States permits hyperlinking and does not impose liability for linking to third party websites that contain copyright infringing material.  [10]  In the United States, linking is more like extracting factual data that is publicly available on the internet.  [11]  The courts of appeals in the United States have not had the opportunity to dive into many hyperlink disputes.  This could indicate that we are a culture of linking and accept this as part of our culture.  GS Media v. Sanoma might just be a cautionary tale, but it could be a reminder that one legal battle could change our access on the internet.

[1] Google Search Statistics, Internet Live Stats, http://www.internetlivestats.com/google-search-statistics/ (last visited Oct. 7, 2016).
[2] Case 92/16, GS Media v. Sanoma Media Netherlands BV, Playboy Entrs. Int’l Inc., Britt Geertruida Dekker, 2016 E.C.R. ¶ 32-55.
[3] Id. ¶¶ 47–49.
[4] Id. ¶ 51.
[5] ¶¶ 47–48.
[6] Id. ¶ 52.
[7] Id. ¶ 54.
[8] Id. ¶ 14.
[9] Id. ¶ 54.
[10] Michael L. Rustad, Global Internet Law in a Nutshell 310 (3rd ed. 2016).
[11] Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH (BQRx), 2000 U.S. Dist. LEXIS 4553, at *5-6 (C.D. Cal. Mar. 27, 2000).