IP, Technology & Data

Last week the European Court of Justice confirmed that the act of linking from one website to another does not infringe copyright where the link is freely available content.

The ECJ’s decision comes some 13 and a half years after the Court of Session in Edinburgh issued an interim interdict (injunction) in a preliminary hearing on deep linking of content in a court case involving two local news websites in Shetland.

The Shetland Times case

In that case, Shetland News deep-linked to articles posted on the website of the Shetland Times newspaper. listing articles on the Shetland News website using the Shetland Times’ original headlines.

The Court (when faced with copyright legislation that made no reference to the internet or webpages) accepted the pursuer’s argument that webpages should be treated as cable TV programmes for the purposes of copyright law, and (based on the relevant section in the 1988 Act) decided that linking to the news articles infringed copyright.

Unfortunately (for IT lawyers looking for clarity on the law), the parties settled the matter out of course before a full hearing could take place.

The court’s preliminary order in the Shetland Times case did not set out the law for long though. It was soon confined to history as the relevant provisions creating a specific class of copyright for cable TV programmes was abolished when the UK adopted the (internet friendly) Information Society Directive in 2003.

However, that still left uncertainty as to whether or not linking to a webpage on another website constituted copyright infringement.

The Svennson decision

That uncertainty has now been removed by the ECJ’s decision in the Svennson case.

The case involved facts largely similar to the Shetland Times case, with a website offering clickable links to articles on other websites, the ECJ. In considering whether or not any infringement had taken place, the key test was whether there had been a “communication to the public”.

The ECJ held that linking to a webpage was a communication to the public, but that if that webpage was already freely available then no new communication to the public was being made, and as such no infringement was taking place.

Key points

Here is a summary of the key points:

  • Linking to a webpage that is already freely and publicly available will not infringe copyright in that original webpage
  • This principle applies regardless of whether or not the user is aware that the content they have accessed is on another website.
  • However, linking to a webpage in a manner that gets round a paywall or other means of restricting access (referred to in the judgment as a “restrictive measure”), will be a communication to a “new public” (and therefore be likely to infringe).
  • The decision has no impact on the law of copyright in relation to reposting or copying content from another page on the web. All it does is say that linking to that other page does not infringe.

Will we see a resurgence in linking policies?

Linking policies used to be common place in website terms of use, stating that a third party could not link to a webpage without the website operator’s consent.

I’ve always viewed such policies as largely impractical to enforce, and counter intuitive to the way that websites (and search engine ranking) operates. That’s particularly the case following the growth in sharing content through social media and desire for “click-throughs”.

Whether or not the ECJ considers a contractual linking policy in a terms of use document to be a restrictive measure remains unclear. The ECJ’s decision refers to such measures being “circumvented”, which implies a technical workaround, rather than simply breaching the terms of use.

Rather than rely on a difficult to enforce linking policy or putting up paywalls or other barriers that might inhibit traffic, I expect that most websites concerned about protecting exploitation of their content will look at technical/design measures to try to ensure that they continue to generate ad revenue through their websites, notwithstanding measures used by aggregation sites to disguise the fact that the content is in fact hosted on another site.

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Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection (including the GDPR), and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.
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