The Court of Justice of the European Union (CJEU) has determined that hyperlinking to illegally published copyright material constitutes an infringement when done for a profit.

In GS Media v Sanoma Media, the CJEU ruled that hyperlinking to illegally published material is an infringement of copyright (by way of being a communication to the public) when the hyperlinking party knew, or ought to have known, that the material has been published in breach of copyright.

Importantly, the court also ruled that when the hyperlinking is undertaken for profit, a rebuttable presumption is raised that the hyperlinking party knew that the material is protected and has been published in breach of copyright.  Accordingly, unless the for-profit hyperlinking party is able to rebut the presumption, it will be liable for copyright infringement.

A critical corollary of the court’s reasoning is that not-for-profit hyperlinking to illegally published material generally will not constitute copyright infringement. This is because such hyperlinking is only an infringement if the party doing it has knowledge that the material has been published illegally – and the court considered that this would usually not be the case where the hyperlinking was not undertaken for profit.