The case concerns copyright proceedings between several Swedish journalists whose press articles were published and made freely accessible on the website of a newspaper and Retriever, an online media service which gave its clients access to these articles via a list of hyperlinks.

The journalists sued Retriever to obtain compensation for the use of their articles without authorisation. They argued that Retriever infringed their exclusive rights by making the work available to the public. The issue was referred by the Swedish Court of Appeal to the European Court of Justice for a preliminary ruling.

The European Court held that the provision of a hyperlink to a copyright work made available on another, freely accessible website does not constitute an "act of communication to the public" within the meaning of Article 3(1) of the 2001 Copyright Directive.

The Court analysed two cumulative criteria: (1) act of communication, (2) to the public. The Court decided that the provision of a hyperlink must be considered to be "making available" and therefore, an "act of communication". The Court did not follow Retriever's argumentation that a hyperlink is a mere indication of a web address and that no transmission is carried out. As to the second element ("public"), the Court found that there was "a public" involved (an indeterminate and fairly large number of potential recipients).

However, referring to earlier case-law (such as in the TVCatchup case) the Court found that in this case the making available of the works by means of a hyperlink was not directed at a new public. As users of the Retriever site could (at least theoretically) access the works that were made freely available on the newspaper's website, these users must be deemed to be part of the public already taken into account when the journalists authorised the initial communication on the newspaper's website. This remains true even where the hyperlink gives the impression that the work is appearing on Retriever's website, when in fact it comes from the newspaper's website (i.e. the practice of "framing").

The Court clearly distinguishes situations where a hyperlink permits users to circumvent restrictions put in place by the original website on which the protected work appears. In such situation, the users of the hyperlink would indeed constitute a new public.

Lastly, the Court states that Member States do not have the possibility to give wider protection to copyright holders in their national laws by broadening the concept of "communication to the public", as that would undermine the harmonization intended by the 2001 Copyright Directive.

It will be interesting to see how the Court further develops its case-law in similar cases (Case C-279/13 C More Entertainment and C-348/13 BestWater).