Untangling the hyperlinking web: In search of the online right of communication to the public

Abstract

This article examines the online right of communication to the public under EU law and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the paper advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court's complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so‐called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.