To hyperlink or not to hyperlink? That is the question!

By Prof Dr Steve Cornelius International Sports Law Centre University of Pretoria South Africa

We live in the information age, in which more and more people get their information from online sources and social media. It is a common occurrence to see posts on ‘Facebook’ or ‘Twitter’ or on blogs that contain hyperlinks to pictures, videos or information posted on other websites. Sports fans are arguably even more active in this regard, setting up webpages or blogs in which they follow every titbit of news about their favourite teams and/or athletes.

The recent landmark case of GS Media BV v Sanoma Media Netherlands (C-160/15) addressed, at least as far as the European Union is concerned, the questions: when is it permissible to post hyperlinks; and when would posting of hyperlinks amount to an infringement of copyright?

In this case, a website, called GeenStijl (literally “no style”), published hyperlinks to certain photographs. The photographs concerned were taken for Playboy magazine and were intended for publication in its December 2011 issue. But in November 2011, these photographs were placed on the Filefactory website without the consent of the photographer or publishers of Playboy. Despite requests to remove the hyperlinks, GeenStijl persisted and reposted more hyperlinks to the photographs.

The European Court of Justice (ECJ) made a distinction, firstly, between the situation where the material was published with and the situation where the material was published without the consent of the copyright holder. In the former instance, the work is freely available to the public and the posting of hyperlinks to that material would not constitute a new ‘communication’ to the public and would, therefore, also not infringe the copyright.

In the latter instance, the ECJ, secondly, distinguished between the situation where hyperlinks are posted in the pursuit of financial gain (as in the case of GeenStijl) and those situations where hyperlinks are posted without the pursuit of financial gain. Where someone has a website or Facebook page which is not operated for financial gain, and posts a hyperlink to material published without the consent of the copyright holder, it is assumed that such a person did not or ought not to have known that the material was published unlawfully. In such a case, the hyperlink would not constitute a ‘communication’ to the public and, therefore, would not amount to an infringement of copyright.

This will not apply if the hyperlink bypasses the security features of the hosting website which are designed to restrict access to the material. The holder of the copyright can also redress this by informing the person who posted the hyperlink that the material was posted unlawfully.

However, where someone operates a website or webpage for financial gain, and posts a hyperlink to material published without the consent of the copyright holder, it can be expected that such person would have conducted the necessary checks to ensure that the material was posted lawfully. It must, therefore, be assumed that the person, who posted the hyperlink, did so with full knowledge that the consent of the copyright holder was not obtained, unless the person, who posted the hyperlink, can rebut this presumption. If the presumption is not rebutted, the hyperlink would indeed constitute a ‘communication’ to the public and, therefore, would constitute an infringement of copyright.

So as far as sports news and blogs are concerned, the implications are clear. If a sports fan or fans have a page or blog, where they share information on their favourite teams or athletes, but none of the fans profit from the page or blog, they can generally publish hyperlinks, as long as they do not bypass the security measures of the hosting website or the holder of the copyright does not complain.

On the other hand, if it is a commercial sports website, or if someone operates the website or webpage for financial gain, for instance, by hosting advertisements from which the person derives a benefit, hyperlinks should only be posted if it is clear that the material has been made available to the general public with the consent of the copyright holder. Otherwise, there will be an infringement of copyright, with the usual legal consequences.