This recent CJEU decision raises a number of considerations for content rights holders and for those seeking to link to content online, across both the EU and the UK

By Deborah Kirk, Luke Vaz, and Amy Smyth

Under UK and European laws, the rights of copyright holders include the right to restrict or prohibit reproduction or communication of their original work. Broadly, this means that any such reproduction or communication of the content requires consent from the copyright holder.

In the digital age, it has become increasingly difficult to regulate for this right in practice, with internet users able to replicate and communicate works using a plethora of channels (for instance, re-posting social media content, framing and inline linking of visual and media content). The Court of Justice of the European Union (CJEU) and UK and EU member state national courts have grappled for a number of years with the particular question of whether hyperlinking constitutes communication of the underlying content that it links to (principally in the CJEU cases of Svensson (2014), GS Media (2016), and Filmspeler (2017), and the English courts TuneIn (2021) case) and whether therefore it could constitute an act of copyright infringement if the hyperlinking does not have the consent of the copyright owner.

In VG Bild-Kunst, the latest CJEU case on this topic, the court held that hyperlinking may constitute communication of the underlying content if the rights holder has implemented technical measures to restrict such linking and the linking circumvents those restrictions. The court also held that, for the purposes of restricting linking, a rights holder may impose contractual obligations on a licensee to implement technical measures to prevent such linking. The CJEU’s emphasis in this decision was on the need for effective technical measures to be implemented (or contractually required) to restrict linking, as evidence of the rights holder’s intention to limit its consent to the communication of its content.