Trevor Little

The European Court of Justice (ECJ) has ruled that posting a hyperlink to works protected by copyright and published without the author’s consent does not automatically constitute a ‘communication to the public’, as long as the person posting the link does not seek financial gain and acts without knowledge that those works have been published illegally. 

As was reported in detail in issue 62 of World Trademark Review, legal doctrine on hyperlinking is controversial. In 2014 the European Court of Justice grappled with the issue in Svensson (Case C-466/12), determining that the provision of a hyperlink was determined to be ‘an act of communication’ but it was non-infringing because it was not directed at a ‘new public’ (the EU Copyrights Directive [2001/29/EC] stating that each act of communication of a work to the public has to be authorised by the copyright holder). Therefore, provided that the linked-to work is not addressed to a new public, linking does not itself constitute an act of communication to the public within the meaning of Article 3(1). However, what was not made clear was whether the ruling meant that hyperlinking is allowed in all circumstances without restriction. All eyes, then, have been on the dispute between GS Media BV and Sanoma Media Netherlands BV for further clarity.

In this case, GS Media, which operates entertainment website GeenStijl.nl, published an article about nude photos of Dutch celebrity Britt Dekker, which had been taken for an edition of Playboy. The article contained a hyperlink to the photos hosted by a file-sharing website. Playboy’s publisher, Sanoma, requested the removal of the files but GeenStijl.nl then published a hyperlink to another site on which the photos could be seen.

In the resulting legal battle, the Dutch Supreme Court asked the ECJ for guidance on linking to unauthorised content – including whether providing hyperlinks to third-party websites on which copyright-protected material has been made available without the rights holder’s consent amounts to infringement, and whether the knowledge of the linker (or an obligation to know) that the content was published without consent is important.

In May we presented an update on Advocate General Wathelet’s opinion, which stated that it is not copyright infringement to hyperlink to a website that has published unauthorised photos. Wathelet concluded that hyperlinks do not ‘make available’ those works where they are already freely accessible – rather the ‘making available’ is the initial communication. Additionally, he stated that the fact that it knew or should have known that the initial communication of the photos on other websites had not been authorised is not relevant. To take a different stance, he argued, would be to the detriment of the proper functioning of the internet, as internet users generally lack the knowledge and means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the copyright holder’s consent.

However, today the European Court of Justice took a more nuanced approach. It agreed with the sentiment that the internet is of particular importance to freedom of information. Similarly, that hyperlinks contribute to its sound operation, and that it may prove difficult for individuals who wish to post links to ascertain whether the works involved are protected and/or publication has been authorised. Turning its attention to the specific analysis, it held that holding that the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts the link does not seek financial gain and acts without knowledge that those works have been published illegally. 

In contrast, where it is established that the poster knew/ought to have known that the hyperlink provides access to an illegally published work, the provision of that link constitutes a ‘communication to the public’. The same applies if that link allows users to circumvent the restrictive measures taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers.

Importantly, the court held that when hyperlinks are posted for profit, it may be expected that the person who posted the link carries out the checks necessary to ensure that the work is not illegally published. Where hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed. If such a presumption is not rebutted, the act of posting a link to a work illegally published on the internet then constitutes a ‘communication to the public’.

In the present case, the court concluded that it appears that GS Media was aware of the illegal nature of the publication and cannot, therefore, rebut the presumption that it posted those links in full knowledge of that illegal nature. Subject to the checks to be made, by posting those links it therefore appears that GS Media effected a ‘communication to the public’.

In a media statement reacting on the decision, Stevens & Bolton’s Tom Collins reflects: “The decision strikes a fair balance between protecting the interests of copyright owners whilst preserving freedom of the internet in an age where hyperlinks are shared so prevalently. This will avoid a regime whereby internet users innocently posting hyperlinks are vulnerable to copyright infringement, such as on social media sites. However, the decision protects right holders by allowing them to take action against those deliberately facilitating access to content which they know (or ought to know) was illegally published, particularly in circumstances where the hyperlink is posted for profit.”

Crucially, for those sharing hyperlinks in a commercial context, he stresses that “there will now be an expectation to carry out checks to ensure that the content has not been illegally published” – a development that “will inevitably raise some practical difficulties for some online businesses”.

As always, the precise impact of the ruling will be depend on how it plays out in practice. Josephine Curry, associate in Taylor Wessing's IP & Media group, concludes that "the breadth of circumstances in which posting links is considered to be done for financial gain will be key to determining how much of an impact this ruling has on day-to-day online activities in a wide range of industries". 

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