In a recent en banc decision, the Korean Supreme Court overturned its previous precedent to hold that a website operator that posts links to foreign websites that replay copyright-infringing content was liable for aiding and abetting copyright infringement (Case No. 2017do19025, decided on September 9, 2021).

The lower court in this particular case issued a decision in line with previous Supreme Court precedent (Supreme Court Case No. 2012do13748, decided on March 12, 2015), finding that the mere offering of a link to infringing content cannot constitute aiding and abetting infringement, because publishing a link does not necessarily make it easier to infringe another's copyright.

However, the Supreme Court overruled the lower court's acquittal of the defendant and remanded the case, holding that the defendant aided and abetted the infringement of another's transmission rights. The Court noted that the defendant continuously provided links to other replay sites (about 450 times over several months) and profited financially from such activity (through banner advertisements) despite being aware that the replay sites were infringing third party copyrights. 

Further, the Court noted that the defendant's links made it easier for the public to access infringing content at a time and place of their choosing, and that the public likely would not have been able to discover such infringing content if defendant did not operate a website offering the subject links. Therefore, defendant's links were determined to have increased the possibility of infringement of the transmission rights of the copyright holders, and the Court reasoned that there was a reasonable nexus between the act of offering links and the actual crime of using infringing content.

The Court did express concerns about overly limiting free speech as a result of this decision, given that hyperlinking is a usual form of interaction on the internet, and stated that aiding and abetting of copyright infringement should only be found in cases where there are clear factors attributable to the actor responsible for providing the links. The Court mentioned a few examples, such as (i) there must be strong evidence that the individual providing the links was aware that the hyperlinked content was infringing, and (ii) there must be a close nexus between the hyperlinking and the infringement of the transmission right, thus resulting in an increased incidence of copyright infringement.

The Supreme Court decision seeks a balance between strengthening protection for right holders concerning copyright infringement on the Internet, which can take place across international borders, while trying to prevent overly restricting online speech. Users who continuously offer links to infringing content on replay sites or mobile apps, etc. on a for-profit basis can no longer be confident of avoiding liability under Korean law. At the same time, authorities and copyright holders should be prepared to offer persuasive evidence of a connection between the hyperlinking and willful infringement of copyright.