Linking can be linking

Whether and when it is permissible to copy an image from another website and use it for your own website has already been discussed in a previous Legal Q&A. The conclusion was that copying an image to your own website without the creator's permission is not allowed because it infringes his or her copyright. Therefore, always check who is the copyright holder of a particular image and ask permission before copying the image. Posting a link to an image, for example, is permitted as mentioned above, without asking permission. However, even posting a link is not always without risk.

By placing a link, reference is made to certain content on an existing website. Therefore, posting a link is in principle permitted. But only if the content was already public and accessible to all Internet users. This is not the case, for example, when the content is located on a website that is only accessible after logging in.

Geenstijl.nl

As an example of a recent issue about the posting of links, consider a procedure between the website Geenstijl.nl on the one hand and the publisher of Playboy, Sanoma, on the other. Links had been placed on Geenstijl.nl to other websites, which showed photos of Britt Dekker taken for Playboy magazine. The photos had not yet appeared in the magazine at the time the links were posted. The photographer had granted publisher Sanoma the exclusive right to publish the photos in the magazine. The editors of Geenstijl.nl, however, had received an e-mail with a link to the photos via an anonymous source and posted it on their website. Publisher Sanoma then asked Geenstijl.nl to remove the link, but this was not complied with.

Sanoma therefore initiated proceedings, claiming that Geenstijl.nl was infringing the photographer's copyright, among other things, by posting the links. The European Court of Justice ruled that there may indeed be copyright infringement if the link leads to "illegal" content, such as Britt Dekker's photos. After all, Britt Dekker's photos had been published on the original website without the photographer's permission.

Since the Internet is an important source for the exchange of opinions and information, a number of factors are taken into account before assuming copyright infringement. Indeed, it is often difficult to determine whether the content of a website is illegal or whether the copyright holder has given permission for his work to be published.

For-profit

When a link is posted, without the person who posted the link having a profit motive in doing so, it must be taken into account that this person did not know and could not reasonably have known that the link refers to illegal content. In that case, infringement will probably not be assumed. It is different if the person who placed the link knew or should have known that it referred to illegal content.

If the link is posted for profit, stricter requirements apply. In that case, it is expected that some research will be done prior to posting. It is then assumed that the person placing the link knew that it was a reference to illegal content. To avoid the assumption of copyright infringement, the person who posted the link will have to prove that he or she did not know.

So linking can be linking

So just like copying from another website, when posting a link it is also important to consider whether the content being linked to is copyrighted and whether the creator has given permission for publication before using it. If you don't, and it turns out that there is illegal content, it may be copyright infringement and you may have to pay damages. Be especially careful if you are posting the link for profit!

This page was last updated on August 16, 2023.