Juha Saarinen: Unlinking the web

That underlined text on web pages looks innocuous enough, but hyperlinks have been a source of legal controversy for a long time now. Photo/ iStock

Here's a new way in which the internet offends the sensibilities of the Real World: hyper linking in web pages.

You know, the foundation of the world wide web, as envisaged by Vannevar Bush in 1945 and put to good use by Sir Tim Berners-Lee and other internet overlords decades later.

Without hyperlinks, there would be no web, basically.

That underlined text on web pages looks innocuous enough, but hyperlinks have been a source of legal controversy for a long time now.

Take Dutch journalist and activist Karin Spaink who was found guilty of copyright infringement for publishing Scientology-related texts.

As part of the court ruling in that case, the judge said that internet providers whose customers link to copyright infringing material are as guilty as the subscribers themselves.

That ruling was reversed as late as 2003 and hung in the air for two years until the opposing party decided not to appeal, but for a while, it looked like the mere act of linking to content from a web page could be construed as copyright infringement.

Fast-forward to 2016, and the Court of Justice of the European Union will once again weigh up if hyperlinking to copyrighted material without the rights holder's permission could be seen as infringement.

The Disruptive Competition Project has a fascinating story , the gist of which is EU law being at odds with the internet.

It's a follow-up hearing to an earlier case in which the highest court in the EU dug itself out of a ridiculous situation that in name at least threatened to cancel out the world wide web.

European copyright law means links are "communication to the public" and therefore a rights holder's permission has to be sought before a URL is posted anywhere on the internet, like web sites, Twitter or Facebook.

However, the Court of Justice worked out a legal kludge to get around this, and said that if the rights holder publishes things on the web without restrictions such as paywalls, they have in effect authorised others to link to it. Ergo, no copyright infringement.

Such a ruling would probably not kill the web entirely, but it would provide governments and others who wish to censor uncomfortable truths with a very powerful and targetted weapon.

That wasn't quite enough though, as some fine legal mind decided to fight on about linking to material that hasn't been authorised by a rights holder as per above. That could be pictures, stories, video and music on the web page, which might or might not be properly licensed.

As Project Disco notes, if the Court of Justice rules that users who link to material on the web must verify that it's been properly licensed, it would open up a nasty can of worms. It would force users to verify the licensing of content linked to from pages they link to, which is of course impossible for the vast majority of users.

Such a ruling would probably not kill the web entirely, but it would provide governments and others who wish to censor uncomfortable truths with a very powerful and targetted weapon.

And, it's a weapon they shouldn't have, if we want to hang onto independent journalism and freedom of expression in general .

The court case is yet another example of how badly the internet fits in with many aspects of existing conventions and law; it's also a massive waste of time and money, because any ruling that makes hyperlinks impossible to use would not only be extremely difficult to enforce, it would be appealed immediately by internet businesses, with further court time and legal fees being spent.

It's a process that serves nobody well, and highlights the need for reform. The internet isn't going to be made to go away through the courts, and the law needs to take that into account.

Oh, and apologies in advance if this column contains any copyright infringing hyperlinks.