CJEU rules that hyperlinks can pose copyright infringement risk if the linked material was illegally placed on the internet

The Court of Justice of the European Union (CJEU) has set out new guidance in a decision relating to the use of hyperlinks on the internet.  The guidance may cause issues
for owners of websites when they use hyperlinks to provide access to material on other websites.  They will have to consider whether the linked content was illegally uploaded to the
internet.

What was the case about?

The decision is in response to questions posed by a Dutch court in a case brought by Playboy’s Dutch publisher, Sanoma (GS Media BV v Sanoma Media Netherlands BV and others, Case-160/15).  In this case, Sanoma’s leaked photos were anonymously uploaded to FileFactory.  A Dutch media company proceeded to publish hyperlinks to FileFactory, promoting access to the photographs.  Despite
Sanoma’s notification and request to the media company that the content be removed, the hyperlinks remained active.

What did the CJEU decide?

Previously, it was considered that posting hyperlinks on a website to copyright works freely available on another website would not constitute an infringing act. Analysing the current case,
the CJEU confirmed that an infringing act would occur if it was known that the works were illegally placed on the internet (for example, through notification by the copyright holder). The court added that, where the posting of hyperlinks is carried out for profit, the court expected that the hyperlink poster would carry out checks to ensure the works accessed by the hyperlinks were not illegally published.  Therefore, there would be a rebuttable presumption that posting a link had occurred with the full knowledge of the protected nature of that work and the possible lack of consent to
publication.

What are the implications of this decision?

Following this decision, there is now a greater risk of being found liable for copyright infringement if you publish links and have not taken steps to check the provenance of the material that becomes accessible.  On the other hand, it could provide copyright owners with a new means of taking action to protect their copyright works.  The CJEU’s decision means that once a copyright owner has given notice to a website that it is linking to material that infringes copyright, those links will necessarily become infringing.  This means that copyright owners now have strong grounds for getting links to infringing material removed.