- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
- Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
- Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
- Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
- In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
- Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
- Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
- We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
- We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
- Our regulatory specialists work alongside Kemp Littles corporate and commercial professionals to help meet their compliance obligations.
- With a service that is commercial and responsive to our clients needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
- At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
- We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
- Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
- We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
- We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
- For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
- Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
- The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
- Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
- Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
- We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
- Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
- Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
- Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
- Kemp Little is trusted by some of the worlds leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
- HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
- FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they dont give away to get you started.
Hyperlinking: the role of intention and knowledge
In its recent decision in GS Media v Sanoma Media and Ors, the Court of Justice of the European Union (“CJEU”) has arguably brought the law up to date with modern online practices. Website operators are largely free to link to and frame on their websites content which is already available online elsewhere, without fear of repercussions. That activity will not, in a vast number of cases, constitute a communication to the public for the purposes of Article 3(1) of the InfoSoc Directive , which is an exclusive right of the copyright holder. However, there are still instances where linking or framing will not be lawful. When that is, is now a question of intention and knowledge of the hyperlinking party.
The basic position, as set out in Article 3 (1) of the InfoSoc Directive, is that the author of a copyright work has the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means. In other words, it is solely up to the author of a work to decide how and when to communicate that work to the public, and the author, as owner of the copyright in the work, may prevent third parties from communicating that work to the public without their consent.
With a post-Brexit focus on the English law implementation of this Article, section 20 of the Copyright Designs and Patents Act 1988, reads:
The communication to the public of the work is an act restricted by copyright in (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film, or (c) a broadcast. References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include (a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and a time individually chosen by them.
The position before GS Media
In the modern context of online sharing and interconnectivity, a restrictive reading of these provisions, and a wide-reaching interpretation of the exclusive right bestowed upon the copyright owner, is close to unworkable. Internet users share content, via hyperlinking and framing, on a regular basis. To say that every instance of re-posting or sharing content is an infringement of the author’s copyright, would be to make nearly every internet user an infringer, and to effectively paralyse the internet.
It is therefore no surprise that the GS Media case comes against a background of other linking and framing cases, most notably, Svensson  and BestWater , wherein European national courts sought guidance on when hyperlinking would be acceptable.
In those cases, the CJEU concluded that providing a hyperlink to a copyright work that was ‘freely available’ online already, would not be a ‘communication to the public’ for the purposes of Article 3(1) of the InfoSoc Directive. In doing so, a new understanding of Article 3(1) was presented: in order for there to be infringement by way of a communication to the public, there needs to be a communication, which is without the right-holder’s consent, but which is also to a new public. The public to which the hyperlinking party communicates the work cannot be the same public as already enjoys access to the work elsewhere and which the rights-holder anticipated would access the work, when authority was given to publish. In Svensson, in particular, the works in question (journalists’ articles) were already live and accessible to all internet users, without restriction, on a free newspaper website. When the defendant in that case provided hyperlinks on his website to the works, there was therefore no new public being given access to the articles.
The matters and considerations arising from the GS Media case were not, however, easily dispensed with; notwithstanding the guidance of Svensson. Here, for the reasons set out below, the hyperlinking party and the decision to hyperlink to copyright works, albeit works already available elsewhere on the internet, seemed somehow altogether more unacceptable and underhand than the hyperlinking in Svensson. But the line had already been drawn by Svensson. How could the CJEU make one kind of hyperlinking unlawful, whilst allowing ordinary internet users to link and frame without repercussion?
In GS Media, the defendant (GS Media), was the operator of a popular Dutch gossip blog-style website called GeenStijl. It was notified that certain photographs of Dutch TV personality Britt Dekker shot for Playboy magazine – but which had not yet been published by Playboy – could be found and viewed on an Australian-hosted data hosting site called Filefactory.com. It was also notified, at around the same time, by the publisher of Playboy, that the photos were not supposed to be accessible on Filefactory.com. Playboy asked that the photos not be published on GeenStijl.
Notwithstanding that the photos shouldn’t have been there, and that GS Media knew that, GS Media proceeded to publish a story on its GeenStijl website inviting its users to click on a link which would take them to the photos on the Filefactory.com website. When the Filefactory.com photos were removed, GS Media posted an alternative link, to another website where they could be accessed by its users. This was all before Playboy actually published the photos itself.
Unlike in Svensson, therefore:
- the works to which the hyperlinks led the user were published without consent online, and there were no authorised publications anywhere at all, yet;
- the hyperlinking party knew that the works to which they were providing links were online unlawfully; and
- the works hyperlinked to – whilst already online somewhere – were not exactly readily available online, and were difficult to find and access, by reason of certain restrictions on Filefactory.com.
In those circumstances, the CJEU was effectively asked whether the Svensson rule still applied, or whether GS Media’s hyperlinking fell into a different, and unlawful, category – i.e. amounted to a communication to the public.
On the face of it, and against the backdrop of previous decisions dealing with the interpretation of ‘communication to the public’, GS Media might have thought it would get away with its actions. It did not use a new technical means (the internet had already been used to publish the photos), and the works were already available online (no paywall was in place on Filefactory.com).
However, the CJEU’s focus here was different. It re-emphasised that the role played by the hyperlinking party is key. It asked whether the hyperlinking party, by way of its intervention, has deliberately provided access to works that otherwise would not or should not have been readily accessible. In so doing, the hyperlinking party may have given access to those works to a new public.
The CJEU concluded that, as part of the analysis of whether Article 3(1) is triggered (which must be on the facts of each case), it is a key consideration whether the hyperlinking party knew or ought to know that the works in question were only already available due to unlawful activity. Did the hyperlinking party know, or should it have known, that the right-holder had not given consent? In that regard, the CJEU directed that there should be a presumption that a hyperlinking party ought to know the status of consent, where the hyperlinking party is profiting, or is seeking to profit, financially from providing the hyperlinks. In other words, it should be part of the due diligence, where the hyperlinking forms part of a commercial exercise, to check that the works to which hyperlinks are provided, are already online with the consent of the rights-holder. Even if the goal is not financial gain, then the hyperlinking party might still be culpable, where it is on actual notice, or should otherwise have known that the works hyperlinked to are online unlawfully.
Accordingly, whilst a party does nothing wrong if it provides hyperlinks to a work that is already, lawfully, online – whose public is the internet audience at large – a party may well do something wrong if it provides hyperlinks to a work that should not have been published online at all. Where the right-holder’s consent wasn’t obtained (or impliedly given by the right-holder’s actions) in the first place, the Svensson rule no longer applies.
Having said this, the CJEU recognises that it is often going to be impossible or impracticable to find out whether a work is online with or without permission. Whether or not that party is actually infringing (i.e. whether the hyperlink is a communication to the public for the purposes of Article 3(1)) will therefore depend on the state of their knowledge when it comes to the right-holder’s consent, or lack thereof. And it will be assumed that they know or should know about the existence or otherwise of that consent, if, in providing the hyperlink, they are pursuing a profit. That presumption can be rebutted, but it will be the starting point for an assessment of whether the linking party is committing an infringing act.
In this way, the CJEU has ensured that the freedom to hyperlink is necessarily curbed. Where a hyperlink gives access to a work that should not already be online, and the hyperlinking party knows (or ought to know) that, or where that party seeks to profit from providing the link and therefore should have known that the original work is unlawfully online, this can be deemed to be a communication to a (new) public. The public that is seeing the work online is not that contemplated by the rights-holder. On that basis, intentional, deliberate proliferation of unlawful copyright infringement is caught; but everyday sharing of content is not.