1) Brief Summary of the Case

The famous Svensson case concerned literary works (news articles) which have been initially published by the Swedish publisher “Göteborgs-Posten”, both in its newspaper and its official website. The claimants had not applied any specific technical measures for restricting the access to its protected content (e.g. no pay walls or registration forms), which was freely available to internet users. On the other hand, the defendant was a Swedish startup company named “Retriever Sverige AB” that offered to its users a news aggregation service. The service allowed the users to access articles that were indexed and categorized, by means of a clickable frame which was placed on the graphic interface of the website and upon its activation could redirect them to the selected article. The applicants filed a lawsuit asking for compensation, considering that their right of communication to the public was violated by the inclusion of clickable Internet links which were redirecting users to their articles. In this respect, the Swedish Court filed a request for a preliminary ruling asking from the CJEU to assess whether the provision of clickable links under the aforementioned circumstances was a violation of the applican’s right of communication to the public.

2) The Court’s ruling

As a first step, the CJEU held that the provision of clickable links to protected material that was published without any access restrictions on another website, amounts to an “act of making available” and therefore “an act of communication” within the meaning of Art. 3(1) of the InfoSoc Directive, since it provides the users of the first website with direct access to those works. The Court reached this interim conclusion based on the settled case law according to which, the mere provision of an opportunity to access the work is sufficient for an “act of communication” to be assessed, irrespective of whether the users avail themselves of that opportunity in particular. Secondly, the Court held that the “act of communication” carried out by the manager of the news aggregation website was aimed at all the potential users of that website, who amounted to an indeterminate and fairly large number of recipients, constituting a “public” that falls within the scope of Article 3(1) of the InfoSoc Directive. As a result, the Court held that the provision of links to freely accessible works amounted to an act of “communication to a public”.