What Does Article 11 or “The Link Tax” Mean for SEO in the EU

What does the European Union’s Article 11, colloquially referred to as “The Link Tax,” mean for search engine optimization (SEO)? A lot of industry analysis up to this point has been focused on the Article’s impact on news aggregators, and it is true that the goal behind the legislation is to get Google, Facebook, and others to share their ad revenue with online publishers. But while it certainly will have a significant impact on — and may even kill — Google News in the European Union, Article 11 may also have some serious repercussions for SEO.

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Because there’s a lot to discuss below and because so many specifics around the Article are still up in the air, here’s the tl;dr summary of what matters most—

What we know for sure:

• Article 11 does NOT apply retroactively.  Old links are safe 
• Google, Reddit, and other major platforms that aggregate news will have to either make significant adjustments or fight to repeal the law
• Article 11 will require major search algorithm adjustments to accommodate radically different linking behavior and the fact that almost all news links will now be “paid”
• Links with no excerpts or summaries are still allowed if the hyperlink text is composed of individual words
• Individuals using news links for private or non-commercial use will be exempt from the licensing fees
• European Union member nations will have two years to implement the Article

Things we might not know until countries start enforcing it:

• While Article 11 is meant to apply to news organization content links, non-traditional news sources like blogs, influential social accounts, etc. might count as “news organizations” under the law
• Though the Article is targeted at news aggregators like Google and Reddit, a private company that links out to news sites might not qualify as an “individual” under the law’s exceptions
• Furthermore, a private company’s blog may not be considered “non-commercial” even if the blog itself is not monetized

What does Article 11 say?

Article 11 is an extension of the 2001 Copyright Directive (or the Information Society Directive) which was put in place to help implement the WIPO Copyright Treaty across the EU.

In its original form, Article 11 set up the legal framework for news publishers to be able to require that online platforms pay a licensing fee when linking to or featuring snippets from those publishers’ content.  There were a lot of vagueries in the original wording like (1) what counts as a publisher, (2) does linking mean any sort of hyperlink or just links in an aggregator format, (3) how long is a snippet; is it a few words or a few sentences or something else?

The EU later amended Article 11 to give some clarification. You can see the original and amended versions of the full document here. Article 11 starts on page 54. The PDF pages of the Article can be downloaded from that link as well.

When the Article was first published, it seemed like individuals would be penalized by the law and hyperlinks to personal blogs could potentially be taxed with publisher licensing fees. But in the clarifying amendment, the authors updated the language to say that the restrictions would “not prevent legitimate private and non-commercial use of press publications by individual users” and that the “rights referred to… shall not extend to mere hyperlinks which are accompanied by individual words.” 

Questions that the European Union will hopefully answer

In theory, these updates sound pretty good.  Individual users can continue sharing the news links non-commercially? Great. Hyperlinks that are linked with individual words won’t count? Fine. But this still creates major issues for SEO.

For example, what happens if an individual is linking out to a news story in their personally-authored blog post on a company’s blog?  Does the fact that it’s done as part of an organization violate the “individual” requirement? Also, say the company hasn’t monetized the blog directly (they don’t run ads), but the blog does boost the company’s online presence and thus drives leads and revenue.  Does that disqualify them from the non-commercial use aspect?  If blogs do count as news sources, SEOs could be in big trouble.  How are you going to get people to link to your content if they have to pay you a fee for it?  Will all blogs have to add a notice that they are opting out of the link tax so that prospective backlinkers will know they don’t have to pay a fee?

Hyperlinks using “individual words” is better than nothing, but certainly cramps a writer’s style and definitely has process implications. Right now, you could make a full sentence or phrase a hyperlink when you really want to draw attention to it, but the new process might be to find the longest relevant word possible to create a hyperlink.  You’re now limited to only using a single keyword when, before, you had more flexibility to be strategic about hyperlink text for SEO purposes.   

Link behavior will certainly change and Google will have to adjust its algorithm accordingly.  The answers to the questions above will alter the scale of the changes.

Case studies and likely scenarios

Luckily, we don’t have to go into this blindly.  We have two case studies to learn from:

Spain introduced a link tax back in 2014 and Google News decided to pull out of Spain as a result.  When the law was first introduced, publishers on average saw a 6% decline in traffic to their websites, with small publishers seeing a 14% drop.  Publishers impacted the most either had to close their doors or begin covering news that took place outside of Spain. AEEPP did a full study on the after effects and you can that here: https://www.aeepp.com/pdf/InformeNera.pdf

Germany introduced a similar link tax in 2013.  Unlike the law Spain would pass in the following year, Germany’s link tax allowed publishers to opt-out.  The hope was that groups that would be negatively affected by the law (like small publishers) could opt-out and not require Google to pay a licensing fee.  But Google, being the profit-driven business that it is, booted all publishers from its platform and required them to opt-out of the link tax if they wanted to sign back on to have their content carried on the aggregator.  More background and analysis of Germany’s experience can be found here: https://niemanreports.org/articles/history-lessons-why-germanys-google-tax-wont-work/

Now that the EU version of these laws has been passed, the 28 different EU nations will have two years to implement Article 11.  Each country will probably take a slightly different approach, but one thing’s for sure – any implementation of the current law will be messy.  If Article 11 is not repealed, or if it’s not further amended by the European Commission, here are a few likely scenarios to help you plan since so much is still up in the air:

• Best Case Scenario: non-news platforms like company blogs will not be required to pay licensing fees or ask for licensing fees for links and news snippets on their websites.  Most news sources will opt-out of the link tax and the Article’s targets, like Google News, Facebook, and Reddit, will be able to mostly continue business as usual with only small tweaks to their algorithms and the way they display data
• Moderate Case Scenario: like in the first scenario, blogs will not be required to pay or ask for licensing fees or will, at least, have an opt-out option.  Aggregators will follow what Google did with Google News in Germany and kick every publisher off their platform and require them to opt-out if they want their content back on the platform
• Worst Case Scenario: all links from organization/company blogs etc. will be considered news links and licenses will be required no matter what (no opt-outs).  Websites will largely stop linking to each other or completely change their linking behavior.  Smaller publishers and websites that depended on traffic driven by Google News, Reddit, or other link aggregators will have to start planning for some alternate traffic means

Conclusion

Article 11 is going to make things crazy for a while.  It’s clear in the amendments that not even the European Commission is fully sure what they’ve wrought, so more textual changes may be coming.  Furthermore, the EU nations will be putting their own spin on things when they begin implementing the directive.  What worries you most about Article 11?  Share your thoughts in the comments!

If you want to see more on the subject, here is some more (slightly older) reading:
https://www.theverge.com/2018/9/13/17854158/eu-copyright-directive-article-13-11-internet-censorship-google
https://juliareda.eu/eu-copyright-reform/extra-copyright-for-news-sites/

About Daniel Russell

Daniel is a Partner at Go Fish Digital and a licensed attorney. During his marketing career, he’s helped structure market research programs for global companies like Whirlpool and Zynga, managed SEO audit projects for Wikipedia.org and The New York Times, and consulted General Electric and Monster Beverage Corp on their online ad campaigns and web presence. Daniel is frequently invited to speak on topics such as CRO, Reddit, and A.I. at the marketing industry’s top conferences including MozCon, Internet Summit, Google I/O Extended, and INBOUND. He’s also been a featured expert in interviews for Search Engine Journal and the Time for Marketing, Growth Hacking, and Marketing Agency Leadership podcasts. Before joining Go Fish Digital, Daniel was the founder of Attentiv (a communication software), a law clerk at Magruder (a corporate litigation law firm), a sales manager at Qualtrics (an XM software, now part of SAP), and a risk management analyst at Marubeni-Itochu (a Japanese trading conglomerate). Daniel was a Fulton Scholar Award recipient at Brigham Young University where he graduated with a degree in Economics and History. He later received his J.D. from the George Mason School of Law where he was the Editor-in-Chief of the Journal of Law, Economics & Policy. Daniel was admitted to the Maryland Bar in 2015.