European Union: Does Hyperlinking To Unauthorised Content Infringe Copyright?

Advocate General Opinion on whether hyperlinking to freely accessible works published without the consent of the rights-holder infringes copyright.

What's the issue?

In 2014, the CJEU ruled in the Svensson case that providing hyperlinks to copyrighted works which were freely available did not constitute a communication to a (new) public for the purposes of Article 3(1) of the Information Society Directive. The works had already been made available to all internet users by being placed on the internet. The decision in Svensson did not conclusively deal with the question of whether this outcome would also apply where the works had been published on the internet without the consent of the copyright holder and it is this which is one of the key issues considered in the Opinion of Advocate General Wathelet (AG) in a reference from the Supreme Court of the Netherlands.

What's the development?

In a request for a preliminary ruling from the Supreme Court of the Netherlands in the case of GS Media BV v Sanoma Media & ors, the AG has opined that posting a hyperlink on one website to another website on which infringing copies of copyright protected works are freely accessible to the public does not constitute an act of communication to the public for the purposes of Article 3(1) of the Information Society Directive.

Expanding on his interpretation of Article 3(1), the AG further held that when a person publishes a hyperlink to an infringing website, it is irrelevant whether that person is or ought to be aware that the infringing copies have been placed on the website without the authorisation of the copyright holder, or whether those works had previously been made available to the public with the copyright holder's consent.

The AG's reasoning appears to be as much based on matters of policy as law. He considered that the use of hyperlinks was "both systematic and necessary for the current internet architecture" and that, if users felt at risk from copyright infringement proceedings each time they posted a hyperlink, they would be put off from doing so, which would be "to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society".

What does this mean for you?

For the average internet user, the AG's views will come as something of a relief although even if the ultimate ruling takes a different line, it is hard to see rights-holders pursuing individuals linking to unauthorised content. For copyright holders, a CJEU decision which follows the AG Opinion would be disappointing as it would definitively close down a potential avenue for protecting content.

Given the apparent departure from Svensson in this non-binding opinion of the AG, it is not guaranteed that the CJEU will follow it. However, if CJEU accepts the AG's reasoning that a finding of infringement in GS Media would be "to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society", it may well be inclined to try its best to do so.

Read more

The reference asked the CJEU to rule on the following issues:

  • Does the provision of a hyperlink to a third party website which is accessible to the general internet public and on which copyright works are made available to the public without the copyright owner's authorisation constitute an act of communication to the public for the purposes of Article 3(1) of the Information Society Directive?
  • Does it make a difference if the work has not been previously communicated to the public with the consent of the rights-holder? Should it be taken into consideration whether the hyperlinker is or ought to be aware of this or of the fact that the rights-holder does not consent to the placing of the work on the website?
  • Does it make a difference if the linked to work is not easily findable on the internet and the hyperlinking makes it easier to find, thereby introducing it to a new public, and how relevant is it whether the hyperlinker knows or ought to know this to be true?
  • Are there any other circumstances which should be taken into account when determining whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rights-holder?

The AG opined that:

  • hyperlinking to a website containing freely available copyrighted works which are there without the authorisation of the rights-holder does not constitute an act of communication to the public;
  • whether or not the hyperlinker knows or ought to know that the works are on the website without the authorisation of the rights-holder is not relevant;
  • a hyperlink which makes the copyrighted material more easily accessible does not constitute a communication to the public for the purposes of Article 3(1).

The AG did suggest that providing a hyperlink which constituted an indispensable intervention without which internet users could not access the work (for example by circumventing a paywall), might constitute a communication to the public.

The AG's finding that it was irrelevant whether the infringing copies linked to were of works that had previously been made available to the public with the copyright holder's consent appears to contradict the finding of the Swedish Court of Appeal in Nils Svensson and ors v Retriever Sverige AB, where it was held, following a reference to the CJEU, that the owner of a website could, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works that had been made available on a freely accessible basis on another site by the right holder. A similar reference was made by the German Supreme Court in BestWater International v Michale Mebes, Stefan Potsch, which concerned the embedding of links in a third party website. The AG noted that the question referred to the CJEU for a preliminary ruling in BestWater did not specifically concern the absence of authorisation. However, the German Court's interpretation of the CJEU's preliminary ruling was that framing of a video on one website that is hosted on another website would only be lawful where the original was uploaded to the hosting website with the right-holder's permission.

However, a distinction can perhaps be drawn between the facts in the current case and Svensson due to the hyperlinks used in GS Media referring users to a sub page of the website containing a zip-file with the images, rather than to the infringing images themselves. Opening a zip-file and accessing the infringing copies would then require the user to click again on the specific image file to open it. Therefore the hyperlinks did not link directly to infringing copies. If this distinction is valid, this ruling won't necessarily apply to embedding services or to services which link directly to an infringing work (for example, if a music track is played automatically form a linked-to service when the link is clicked on).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.