Enter the Matrix: The Effects of the CJEU's Case Law on Linking and Streaming Technologies

Abstract

The Court of Justice of the European Union (CJEU) has published its Svensson decision on hyperlinks and BestWater order on embedding in 2014 – and thus contributed to a fierce debate on the future of popular online activities. On the one hand, the preliminary rulings evidenced great flexibility as they allow for the use of hyperlinks to and embedding of publicly available contents. Indeed, under BestWater the embedding of illegally published materials might be also accepted. On the other hand, those decisions shall be read in conjunction with the already existing case law of the CJEU, and the Svensson and BestWater rulings are more or less in contradiction with some of the earlier decisions. Not surprisingly, courts of the Member States are still struggling with the proper treatment of these forms of online activities, and thus they continue to rely on the CJEU’s interpretation of EU directives. The paper aims to shortly introduce the different types of linking. After it, the CJEU case law will be discussed: starting from the Svensson/BestWater cases, referring to former rulings such as SGAE, TV Catch Up or ACI Adam, discussing the post-Svensson cases as well as the currently pending applications. Finally, the paper aims to provide a balanced approach for the treatment of linking, where external solutions – that is, other than the CJEU’s own – might be followed as well.