Retriever Sverige AB provided its users with clickable links to press articles written by freelance journalists and published on other websites. The journalists argued that this amounted to a communication to the public of their works without authorisation.
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The CJEU held that providing hyperlinks to content freely accessible on the internet does not constitute a communication to the public within the meaning of Directive 2001/29. The reason is that the public targeted by the link is the same public that could already access the content directly on the original site.
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For there to be a new communication to the public, the work must be made available to a new public, one not taken into account by the initial communication. A simple link does not add a new public if the content is already freely accessible.
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Caution is needed, however: this rule does not apply to links that circumvent technical access restrictions, nor to content that was initially posted online without the right holder’s authorisation.