By Annelise Lykke Schmidt and Tabark M. Jasim, November 2023
Linking makes it easier for an internet user to navigate around the web by connecting different websites. There are various links, including reference linking, deep linking, surface linking, embedded linking and much more. The rules for the use of these links vary depending on whether the link is to legal or illegal material. Adherence to these rules is essential to maintaining both legal integrity and ethical responsibility.
Linking to legal material (with consent)
In the European Court of Justice’s decision in the Svensson case (Case C-466/12), it was held that linking to legal material generally does not constitute copyright infringement when the material has already been published and is available to all without restriction. This underlines the importance of respecting the exclusive rights of journalists, especially when linking targets a new audience that the originator did not foresee. This means that if the content is freely available to any internet user, it is usually legal to link to it.
Linking to illegal material (without consent)
The European Court of Justice in the GS Media case (Case C-160/15, GS Media) ruled that linking to illegal material without the consent of the rights holder can constitute a copyright infringement. This is particularly relevant when the linker knows or should know that the material was published without the permission of the copyright holder. Adhering to these rules is essential to avoid legal consequences and to ensure that one does not contribute to piracy or illegal distribution of content.
Businesses’ use of links on their website
For business operators, it is also important to understand the rules on good marketing practice in connection with the use of links on their websites. This involves a careful consideration of whether the linking constitutes a form of parasitism or exploitation of the linked content. Surface links pointing to a website’s front page are not normally considered to violate good marketing practice. But deep links, where the linked content is presented as part of the trader’s own website, can potentially be considered unethical, especially if it creates a misleading perception of who is producing the content. Following these rules and guidelines is not only necessary to avoid legal problems, but it is also essential to maintain a trusting relationship with both rights holders and users. Respect for copyright and good marketing practice are fundamental principles for a well-functioning and ethically correct online environment. It is therefore important for anyone working with links and online content to understand and comply with these rules.
