AG weighs in on the legality of Hyperlinks

In his recent opinion in a case pending [1] before the Courts of Justice of the European Union (‘CJEU’), Advocate General Maciej Szpunar weighed in on the legality of embedded hyperlinking - also known as framing.

Traditionally, hyperlinking refers to an act whereby one webpage displays a URL to another (possibly, third-party) webpage. Users are generally required to click the hyperlink itself in order to access the content to which the URL links. 

Framing is the latest development in hyperlinking and one which has become increasingly prevalent within the current digital landscape. Unlike traditional hyperlinks, through framing, webpages can display content which is hosted on another webpage directly to their users, without requiring those users to click the relative hyperlink.

A classic example of framing is sharing a video hosted on youtube on another website, such as a social network.

AG Szpunar distinguishes between two types of framing techniques which he opines have different implications from a copyright law perspective.

1. Clickable Links:

The first type are what he describes as “clickable links using the framing technique”. In his view, this type of framing is not all that different from traditional hyperlinking, in the sense that their click-ability in itself indicates to users that the content is actually hosted on a third-party site, and by clicking on the link, users would establish a connection with the original site hosting the content.

He concludes that this type of hyperlinking (which equates to the youtubeexample highlighted above) is permissible in certain instances where it links to content which has been madefreely available to the public on the internet with the authorisation of the copyright holder. With reference to established CJEU jurisprudence [2] AG Szpunar, does however stress that this is not permissible in instances:

1. Where the links in question circumvent access restrictions (such as paywalls or restrictive privacy settings); or
2. Where the protected content has not been made available to the public with the authorisation of the respective right holder (such as illegal uploads of protected music to video-sharing platforms).

[Below is a typical example of a clickable link]

2. Automatic links

Another form of framing is what AG Szpunar describes as “automatic links”. This refers to content which is embedded in a webpage in a way that makes it appear as an integral element of the webpage containing the link.

This type of hyperlinking is commonly used in order to display an image on a webpage which is actually hosted on another.

In such cases, from the user’s perspective, there is no visible difference between an image hosted on that website’s own server and another linked from a third-party site. Moreover, in such instances, there no longer remains any visible link with the original site hosting the image framed on the second site.

The main difference between clickable links using the framing technique and automatic links is that in the former case, the user knows that they are being redirected to a different website, whereas in the latter they may have the impression that they are accessing only one website. Automatic linking is therefore tantamount to the communication to the public of the original content to a new audience which had not been originally envisaged by the right holder.

[The image below is a typical example of an automatic link. It is hosted on Muscat Mizzi's Facebook Page, this is verifiable by right-clicking the image, copying the image address and pasting it in your browser's address bar]

Conclusion:

For these reasons, AG Szpunar concludes that automatic linking requires the authorisation of the rightholder, even in instances where the protected content linked has already been made freely available to the public on the internet with the authorisation of the copyright holder.

[1] Case C‑392/19 VG Bild-Kunst
[2] Case C-466/12 Svensson and Others; Case C-160/15 GS Media