The world of social media is designed to encourage us to share. Helping a meme or YouTube go "viral" by hitting share with your friends is good then, right? While you may think it's OK to play a small part in the next Internet sensation, legally speaking, it comes with a warning. That's because, in certain circumstances, you may be liable for sharing unlawful content without even knowing it. For example, if you share content that defames a well-known media personality or infringes an artist’s copyright.
The consequences of sharing material online that defames someone, or infringes their copyright, can be serious. It can even lead to potentially significant penalties or damages.
This article explores just some of the civil law consequences of online linking of unlawful content.
A Short Guide To Copyright Law
Digital content often contains original images, songs, or text considered original works in terms of the Copyright Act 1968 (Cth) (the Act) and are likely subject to copyright protection. This means that only the owner or licensee of these works has the right, amongst other things, to adapt or reproduce the works or publish them online.
Copyright infringement occurs when a person who is not the owner or a licensee of a copyrighted work exercises one of the copyright owner’s exclusive rights without permission, for example, by making a video with a song they don’t have rights to or posting a photograph taken by someone else on their website. You can also infringe someone else’s copyright by “authorising” someone else to infringe copyright, for example, by enabling or endorsing the infringing activity or providing the infringer with the necessary tools to infringe.
Linking To Content & Copyright Infringement
Generally, you won’t be liable for copyright infringement simply by sharing a link to original, lawful content without the copyright owner’s consent. This is because “linking” isn’t considered one of the exclusive acts reserved for the copyright owner in terms of the Copyright Act. So, for example, you won’t be infringing copyright if you share a link to a funny, original TikTok video on your Facebook page. You aren’t reproducing the content or copying it; you are just directing users to the relevant website or page.
But in some cases, you can be held liable for copyright infringement when you share a link to a third party’s website that contains copyright infringing material on the basis that you have “authorised’ the infringement.
An example would be if you were to compile a list on your blog of the top 10 sites to get pirated movies and provided links to those sites as you would probably be seen to be facilitating the infringement.
It is important to be cautious when sharing links to third-party content or allowing others to share links on one’s platform to third-party content where you have reason to believe the content is or may be infringing someone’s copyright.
Think Before You Link: Defamation & Liability
Defamation occurs when a party publishes false information about a person to at least one third party that causes others to think less of that person. Our courts have held that an unrelated party that publishes a link to defamatory content can be liable for the defamatory content as a publisher in certain circumstances in the digital age.
In a recent case, a Facebook user shared a functioning hyperlink and accompanying text to her page that redirected users to a YouTube clip containing clearly defamatory material regarding someone else. Amongst other things, the clip suggested that this person was part of a homicidal criminal network. The Facebook user unsuccessfully argued that she was not liable for defamation as she didn’t write or produce the YouTube clip. The court found that the Facebook user was, in fact, liable for defamation by sharing and positively endorsing the defamatory video.
The Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) (the ACL) prohibits a person or business from engaging in conduct, in trade or commerce, that is misleading or deceptive. In some cases, a party can be held liable for breaching the Australian Consumer Law if they share or publish a link to misleading and deceptive content in the course of their business or trade.
An example may be where a manufacturer of a scented body lotion that has no therapeutic benefits posts a link on its social media pages to a dubious study that suggests that one of the ingredients in the body lotion cures all forms of eczema. The body lotion manufacturer could be liable even if they didn’t know that the study was false.
The above are just a few examples of where you can be held liable for hyperlinks to third-party content that is unlawful and where you may want to “think before you link”.
How Level Up Legal Can Help
Level Up Legal can assist you in enforcing and protecting your copyright on and offline. If you are concerned that someone has copied your work or have been accused of the same, we can advise you of your options and best strategy moving forward. We can also help you put in place a robust Intellectual Property protection strategy to minimise the chance of anyone copying your work in future.
Contact Level Up Legal, and we’ll get back to you shortly.