Linking re­stric­tions due to ECJ judgement

Although you’re based in the US, you might have decided to host your website overseas. Here are just a few of the benefits for doing this:

1. Financial gains (overhead costs and taxes may be lower in other countries)


2. Get around local laws (if your website’s content isn’t accepted in the US, you could host your website in a country where it’s not illegal)


3. Better Google Ranking (Google Ranking varies for different countries so if the audience you want to target is mostly based in another country, your Google Ranking there is more likely to be higher than it would be if you hosted in the US)

When hosting your website in the EU, you should pay attention to the links you use. A judgment was recently passed, which limits the freedom to post links. Be careful you aren’t com­mit­ting copyright in­fringe­ment every time you link to external content. The following para­graphs explain more on the topic:

A recent judgment made by the European Court of Justice (ECJ) has re­strict­ed the use of links on the World Wide Web. If you link ac­ces­si­ble online content, you could actually be com­mit­ting copyright in­fringe­ment. With this ruling, the ECJ has, in fact, con­tra­dict­ed the Advocate General’s rec­om­men­da­tion. The Opinion of the 7^th of April 2016 ruled that posting hy­per­links isn’t a pun­ish­able offence:

The hyperlink could end up counting as 'com­mu­ni­ca­tion to the public'. The judgment went to the Second Chamber of the European Court of Justice on 8^th September 2016. A specific case study is the Dutch gossip blog, GeenStijl ('No style'), operated by GS Media. The blog reported about the Playboy shoot featuring TV star Brit Dekker and included a link in its article. This link contained un­li­censed copies of the nude shots. When the site was shut down, the GeenStijl operators swapped the link with another un­li­censed image source, which then caused the Finnish media company, Sanoma, (which publishes Playboy in the Nether­lands) to file a complaint. Although the ECJ basically agrees with the as­sess­ment of the Advocate General, Melchior Wathelet, it is not easy for private internet users to see whether an openly ac­ces­si­ble work has been published in a wa­ter­tight way, legally speaking. Com­mer­cial website operators, however, are expected to check the copyright.

The ECJ doesn’t fun­da­men­tal­ly challenge link culture on the internet, however, it’s clear that bound­aries have been set when it comes to the 'Playboy' case. According to the judges, these are then exceeded if a hyperlink is con­sid­ered as an unau­tho­rized com­mu­ni­ca­tion to the public. According to copyright, this link belongs to the author and can only be used with licensing rights. Whether a hyperlink linking to online content falls under the concept of 'com­mu­ni­ca­tion to the public' depends on various con­di­tions according to the press release issued by the ECJ:

• The first thing is to check whether the website operator has in­ten­tion­al­ly linked to the unau­tho­rized content. This is only ok for private internet users to do if they ex­plic­it­ly point out that the content is unau­tho­rized.

• Com­mer­cial website operators, unlike private internet users, can’t plead ignorance when it comes to linking to unau­tho­rized web content. As soon as a hyperlink is placed in an article for financial gain, the website operator is required by the ECJ to examine whether the web content may have been published without the copyright owner’s consent.

In specific cases, the ruling of the European Court of Justice concerns the com­mer­cial use of hy­per­links related to cir­cum­stances in which website operators have linked to unau­tho­rized content a second time. The effects of the ECJ ruling go beyond in­di­vid­ual cases. The European Court of Justice also deals with the blogger community where links are fre­quent­ly used, but only when there’s a lot of un­cer­tain­ty as to whether they are bordering on copyright in­fringe­ment or not. There have been dis­cus­sions as to what counts as financial gain when it comes to hy­per­links. The ECJ doesn’t have any general guide­lines. This could be a disaster for blogs since website operators will be less inclined to post links to other websites as they don’t want to go to the trouble of checking the copyright. Bloggers, who don’t make much money with their website content, won’t find the hassle worth their while. If this is the case, the only pos­si­bil­i­ty is to leave the link in question out of the post. The ECJ judgment was crit­i­cized by IT expert, Thomas Stadler, who raised the question of how jour­nal­is­tic websites, which are generally com­mer­cial­ized, should ensure they’re following the ECJ re­quire­ments. Instead of making ju­ris­dic­tion dependent on a case-by-case com­par­i­son, which primarily takes into account possible financial gain, he should have taken into account 'those who link specif­i­cal­ly to copyright-in­fring­ing content as an ac­com­plice or par­tic­i­pant of the copyright in­fringe­men­t'. This article on YouTube copyright explains that the video platform is full of copyright in­fringe­ment. The material used in the videos them­selves might be copy­right­ed so it’s difficult to know if they are even allowed to be uploaded to the video platform, let alone whether you can link to them in your blog post. It is presumed that the blogger has checked that the content isn’t copy­right­ed before embedding the video in their post. It is assumed that the ECJ ruling will lead to a dis­cus­sion to determine the precise dis­tinc­tion between com­mer­cial and non-com­mer­cial use of copy­right­ed works. If the leg­is­la­ture is based on the ECJ ruling and the private use of online content is not motivated by profit, this could provide answers to a number of pre­vi­ous­ly un­re­solved copyright-related issues.