Slaughter & May – The issue of whether hyperlinking falls within the scope of copyright protection is of fundamental importance to all those who use the internet.

Two years after the ECJ considered the legality of hyperlinking in the case of Svensson (C-466/12), the Advocate General (AG) has delivered its opinion in GS Media BV v Sanoma Media Netherlands BV (C-160/15). GS Media looks in particular at whether the act of hyperlinking to copyright works which have been placed on the internet without the permission of the copyright owner is an infringement of copyright.

In his Opinion, the AG has taken the view that if copyright works put online without the rights holder’s consent are freely available on the internet through third-party websites with no restricted access, hyperlinks to those works do not constitute an act of communication to the public under Article 3(1) of the Copyright Directive (2001/29/EC) (Article 3(1)) and are not therefore an infringement of copyright.

This article examines the AG’s guidance and looks at how it differs from the reasoning the ECJ has adopted in previous decisions. It also considers its practical implications if the ECJ follows this Opinion when in due course it gives judgment in this case.