The use of hyperlinks to access third party websites is such a common part of internet communication that it is hard to imagine that they might give rise to a claim of infringement of copyright in material on the site being accessed. However, the issue is of importance in the Isle of Man where there is a significant and highly developed internet activity conducted internationally.
The starting point is that rights holders are entitled to restrict the communication of their works to the public. In most cases, of course, whilst the use of a hyperlink amounts to a communication, it will not involve a communication to the public to the extent the material concerned is already freely available on the website in question.
However, there may still be instances where the material is accessed without the consent of the rights holder and so communicated to a wider public. Such an instance was illustrated in the recent decision of the European Court in GS Media BV v. Sanoma (September 2016) in which the hyperlinks were to leaked pre-publication photographs from the "Playboy" magazine.
In that case the court held that an assessment should be made as to the nature of the particular communication enabled by the hyperlink and the wider public afforded access to the material in question. Such an assessment should take into account whether the person placing the hyperlink knew or ought to have known that the link provided access to a work published unlawfully online (eg if he has been put on notice), or provides a link to circumvent restrictions which limit access to particular material (eg through the use of a so-called deep hyperlink). Such knowledge will be presumed where a hyperlink is posted for profit.
This decision draws a sensible distinction between the use of links by ordinary internet users (who cannot be expected to perform a detailed assessment of the works to which they are linking and whether or not they are published with consent) and those users of the internet who seek to profit by sharing the works of rights holders or who do so knowingly.
It is, therefore, a welcome reminder that the right to place hyperlinks is not unlimited, and to that extent not without risk; and the practical consequence may be an increase in the giving of notices requiring the removal of unlawfully accessed material and a corresponding increase in the burden of compliance particularly on website owners.
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.