Hyperlinks and Copyright Under EU Law: The CJEU Jurisprudence from Svensson to the Modern Framework

The legal status of hyperlinks under EU copyright law has been shaped by a series of CJEU decisions running from Svensson (2014) to VG Bild-Kunst (2021), establishing a framework that defines when linking to copyrighted content constitutes “communication to the public” under Article 3 of the InfoSoc Directive 2001/29/EC. The framework is operationally critical: every website, social media platform, news aggregator, and search engine relies on hyperlinks as the structural basis of the internet, and clarity on when linking engages copyright liability is essential for legal compliance. This guide traces the CJEU jurisprudence and explains its application in Italy.

For the broader EU intermediary liability framework, see our internet intermediary liability guide. For the DSM Directive press publishers right (Article 15) impact on news linking, see our press publishers right guide.

Svensson (2014): the foundational decision

Svensson and Others v. Retriever Sverige (C-466/12, 13 February 2014) established the foundational framework. The case concerned a Swedish news aggregation service that linked to articles freely available on the original newspaper’s website. The CJEU held:

• Hyperlinking is an “act of communication” within the meaning of Article 3 InfoSoc Directive;
• However, for there to be a “communication to the public” — the operative concept — the communication must reach a “new public”: one that the original author had not considered when authorising the initial communication;
• Where the linked content is freely available on the originating website with the rights holder’s consent, no “new public” exists — the link merely facilitates access for an audience already covered by the original authorisation;
• Therefore: hyperlinking to freely available content does not require additional authorisation.

Svensson became the cornerstone of EU linking jurisprudence. Critics argued that the decision was overly mechanical in its “new public” test; supporters argued that it correctly preserved the functioning of the internet.

BestWater (2014): framing

BestWater International (C-348/13, 21 October 2014) extended Svensson to “framing” (embedded display of third-party content). The Court held that framing of content freely available on another website does not constitute communication to a new public, and therefore does not require additional authorisation.

This protected the practice of embedding YouTube videos, social media posts, and similar third-party content into websites — provided the underlying content was authorised on its originating platform.

GS Media (2016): the knowledge standard

The Wathelet Advocate General opinion was followed by the CJEU’s final judgment in GS Media v. Sanoma (C-160/15, 8 September 2016). The case concerned Dutch site GeenStijl linking to leaked Playboy photographs hosted on a file-sharing service without the rights holder’s authorisation. The CJEU introduced a crucial distinction:

• Linking by private individuals without commercial purpose: not infringement unless the individual knew or ought to have known that the linked content was infringing;
• Linking by commercial actors (for-profit websites): presumption of knowledge that the linked content is infringing — operative liability unless the commercial linker can rebut the presumption;
• Knowledge of unauthorised source: even individual linkers face liability where they had actual knowledge of infringing source.

GS Media meaningfully narrowed Svensson: commercial websites can no longer safely link to obviously pirated content. The decision was controversial because the “ought to have known” standard for commercial actors creates substantial risk for legitimate aggregators and search engines.

Filmspeler (2017): facilitating access

Stichting Brein v. Wullems (Filmspeler) (C-527/15, 26 April 2017) extended the analysis to media players sold with pre-installed add-ons enabling access to streaming of infringing content. The Court held that the sale of such pre-configured devices constitutes communication to the public — the seller “intervened in full knowledge of the consequences of his action” to give access to protected works.

Filmspeler is important because it showed that the CJEU was willing to extend communication-to-the-public analysis beyond direct linking to include facilitation of access in the broader sense.

Renckhoff (2018): the “new public” criterion

Land Nordrhein-Westfalen v. Renckhoff (C-161/17, 7 August 2018) refined the “new public” criterion in a different direction. The case concerned a school student who downloaded a photograph from a travel website and uploaded it to a school website. The CJEU held:

• Where content is downloaded and re-uploaded to a different website, this constitutes communication to a new public, distinct from the original communication;
• The “new public” includes users of the new website who would not have been part of the audience originally contemplated by the rights holder;
• Re-uploading therefore requires authorisation, even where the original was freely available.

Renckhoff distinguishes between mere linking (Svensson) and re-uploading (Renckhoff): the legal treatment is different because re-uploading creates a new copy under the rights holder’s control on a different domain.

VG Bild-Kunst (2021): technical protection

VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz (C-392/19, 9 March 2021) addressed the role of technical protection measures. The case concerned framing of images that the rights holder had subjected to technical protection measures to prevent unauthorised framing. The CJEU held:

• Where rights holders have implemented effective technical protection measures against framing, circumventing those measures to frame the content constitutes communication to a new public;
• Authorisation is therefore required;
• The decision restored some control to rights holders against framing, where they take active steps to prevent it.

The VG Bild-Kunst framework provides rights holders with a practical mechanism to control framing where they choose to invest in technical protection.

Italian application and DSM Article 15

Italian courts apply the CJEU framework directly. Italian implementation involves:

• Article 16 LDA: communication to the public right, directly aligned with InfoSoc Article 3;
• D.Lgs. 70/2003: implementation of the e-Commerce Directive, with intermediary liability framework for hosting and caching services;
• D.Lgs. 177/2021: transposition of DSM Directive, including Article 15 ancillary right for press publishers — see our press publishers right guide;
• DSA Regulation 2022/2065: notice-and-action framework for platforms;
• Italian AGCOM: administrative procedures for online copyright infringement;
• Piracy Shield: Italian system for rapid blocking of infringing streaming domains.

DSM Article 15 introduced a significant change for news aggregation: press publishers now have specific rights against online services using “more than very short extracts” of their press publications — including in some link contexts. The interaction between Svensson (linking allowed for freely available content) and DSM Article 15 (publisher rights for news content) creates a complex framework currently being tested in Italian and EU courts.

How DANDI supports clients on linking issues

DANDI.media supports websites, platforms, aggregators, and content businesses on hyperlink and communication-to-the-public issues:

• Linking strategy and compliance assessment;
• News aggregation under DSM Article 15;
• Framing compliance and TPM analysis;
• Search engine and content aggregator liability;
• DSA notice-and-action implementation;
• AGCOM proceedings and Piracy Shield coordination;
• Defence in linking infringement claims;
• Cross-border enforcement coordination.

For consultation, book directly with Avv. Claudia Roggero or Avv. Donato Di Pelino.

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