Freedom for hyperlinks?
The fundamental importance of hyperlinks for the existence of the World Wide Web has long been confirmed by the highest German courts. This does not mean, however, that users have carte blanche when setting links on their own website, in blogs or social media. Although a lot is allowed, there are some limits that must be known, especially in the area of copyright and advertising law. This article provides an overview of what has to be considered when setting a link and where legal hurdles can lurk.
In order to understand the legal situation around hyperlinks, one must first know that the legal assessment of links is not explicitly regulated in any law. Therefore, over the last 20 years a colourful body of judges’ law has developed, which has not always been characterised by the greatest technical understanding of how the web works. Moreover, the courts also tend to contradict each other: And once a certain amount of legal certainty has been established, a court, by means of a new judgement, is able to create legal uncertainty again in a very short time in some sub-areas. Nevertheless, over the years, firm principles have been established on which one can build and rely.
I. When is a link a link?
Surprisingly, lawyers are already arguing about what a hyperlink actually is. According to Wikipedia1 , a hyperlink is an “electronic reference that allows you to jump to another website or file with a single click”. Accordingly, only clickable links fall under this definition, not written-out links in text form that have to be entered manually in the address line of the respective Internet browser.
The Munich Higher Regional Court (OLG) found in 20082 that “there is also a legal difference whether the reader reaches an illegal website simply by clicking on a link, or whether he reaches a website by entering a search term in a search engine or by entering the name of the website in the address line”.
The upper representation is thus legally a link, the lower one is not:
There are also different types of hyperlinks. The so-called “surface link” merely refers to the start page of a web offer. The “deep link” refers to a special file within a web offer. The “Inline-Link” (Hotlink) makes it possible to integrate external content into one’s own website without having to recognize its origin, as is regularly the case with YouTube videos, for example. Within the framework of “framing”, external content from external websites such as videos, photos or text messages are integrated into the own website.
II Legally compliant links
If one refers with a hyperlink to contents of other websites, the question arises whether and under which conditions the setting of a hyperlink is permissible. In principle, the German Federal Court of Justice (BGH) has already stated in the so-called Paperboy ruling3 in 2003 that links, including links to sub-pages of an online offer, are permissible without the consent of the person creating the link. The court’s main reasoning was that without the use of hyperlinks, the sensible use of the vast amount of information on the World Wide Web would be practically impossible. At the beginning of 2014, the European Court of Justice also confirmed the fundamental decision once again.
1. technical protection measures
This freedom is limited, however, if a website operator has clearly implemented a technical protection measure, such as a session ID, to allow public access to a protected work only via the start page. In this case, setting a hyperlink interferes with the right to make a work publicly accessible under § 19a of the German Copyright Act (UrhG) and is not permitted.
2. linking to a website with illegal contents
The delimitation is more difficult, especially with regard to the question of whether and to what extent the linking party is liable for illegal content on the linked website. This could be, for example, a clear insult, an unlicensed online casino or the sale of unauthorized drugs. If the user knows and can see that he is linking to clearly prohibited content when setting the link, he is also legally responsible for it – possibly even under the provisions of criminal law.
As a rule, however, the question of admissibility will not be easy to answer. Jurisprudence then assumes that the person who sets a link has duties of verification.
Translated with www.DeepL.com/Translator (free version)