Hyperlinks and Copyright in Europe

Last Thursday (08 September 2016)
the CJEU handed down a judgment in a case which will have implications for digital
publishers, from newspapers to bloggers. The case (GS Media v Sanoma Media Netherlands and Others (C-160/15)) considers
whether hyperlinking to a public third-party website that contains materials
published without the consent of the rights holder constitutes a
“communication to the public” within the meaning of article 3 of the
Copyright Directive.

The CJEU held that providing a
hyperlink to freely accessible online content posted without the consent of the
copyright owner could constitute a copyright infringement if the person placing
those links knew this consent was not given.

What happened?

In October 2011 GeenStjil, a
Dutch news blog owned by GS Media, posted hyperlinks to an unpublished
photoshoot of Dutch TV presenter Britt Dekker commissioned by Sanoma, the publisher
of the magazine Playboy. Sanoma requested GeenStijl not to publish the link on
three separate occasions and GeenStijl continued to post links to the
photographs. Sanoma subsequently brought a claim for copyright infringement
against GS Media and the case was referred to the CJEU by the Dutch Supreme
Court.

The key question the Dutch
Supreme Court referred to the CJEU was whether the provision of a link (here
the hyperlinks published by GeenStijl) to a work made freely available online
by a third party without the consent of the rights holder (in this case,
GeenStijl linked to a different site each time Sanoma got the previous
infringing copy of the photographs taken down) constitutes a
“communication to the public” in accordance with Article 3 of the EU
Copyright Directive. The court considered whether it was relevant whether the
work previously had been made available to the public with the copyright
holder’s consent or that the party posting the link was (or should have been)
aware that the material was posted without consent. The court felt it was
particularly relevant that the links resulted in a benefit to GeenStijl in the
form of an influx of visitors, and also took into account Sanoma’s repeated
takedown requests.

To hyperlink or not to hyperlink?

Advocate General Wathelet had recommended
that posting a hyperlink should not constitute a communication to the public
because the site itself would be freely available to the public regardless of
the posted hyperlink. Accordingly, the action of the hyperlinker could not make
the work available – it already is available; the link merely facilitates
finding it.  It is interesting to note
that in a rare deviation from the recommendation of the Advocate General, the
CJEU did not arrive at the same conclusion, holding that in certain circumstances
hyperlinks would be considered a communication to the public, thus opening the
possibility that copyright laws could apply to them. 

The CJEU, however, concluded that,
if a someone person or party posts a website link to online copyright content without
the consent of the rights holder, the link will not be a communication to the
public if (1) they did not know, and could not reasonably have known, that the copies
to which they linked were unauthorized copyright materials and (2) that the
communication is not for financial gain. If the link to infringing content is
posted or placed online  for financial
gain or “for profit”, the person or party providing the link will be
presumed to know about the lack of consent and thus presumed to make a communication
to the public, unless they can demonstrate that they did not have that
knowledge.

The CJEU held that if a party
publishes a link without the consent of the rights holder and there is no
financial gain, it should be presumed that the person in question does not know
(and cannot reasonably be deemed to know), that the work has been published
without consent. Conversely, if a party knew or ought to have known that the
link provided access to a work which has been posted without consent (for
example if they have been put on notice, such as in GeenStijl’s case), the
provision of that link would constitute a communication to the public. If a
party posts a link in order to make a financial gain, the court held that
“it may be expected that the person who posted such a link should carry
out the checks necessary to ensure that the work concerned is not illegally
published”.

Thus, the CJEU’s reasoning
implies that, unlike a copyright holder’s other privileges, the restricted act
of communication to the public is not determined by the act performed by the
alleged infringer – creating a physical link – but purely by their state of
mind and knowledge when creating that link. 
This is a significant distinction from restricted acts such as copying,
issuing copies to the public or performing a work, all of which are infringed
simply by doing the action itself, regardless of knowledge.

The grey areas

Both the CJEU and the Dutch
courts have sought to make a clear distinction between the posting of links by
regular internet users (for example yours truly posting a hyperlink to an
interesting website on my LinkedIn, Twitter or Facebook account) and parties
(particularly businesses) who make a financial gain by providing links to
copyright materials. The courts have demonstrated their desire to single out
parties who knowingly or deliberately infringe copyright – particularly in this
case where the GeenStijl was repeatedly notified and asked to remove the
hyperlink.

One might argue that this
decision creates unforeseen ambiguity which could lay the foundation for future
cases involving the use of hyperlinks to copyright materials. When considering
whether a hyperlink is posted for a financial gain, the next logical question
will be: ‘What exactly constitutes a publication for financial benefit or for
profit?’

The distinction is an easy one
when comparing a person using the internet for a non-commercial purpose and a
business which generates revenue from hyperlinking. However, there are a number
of fringe cases. Take for example a blogger who hyperlinks to copyright content
which is published without consent. How do you establish if the blogger is
simply an individual linking to content for his or her own interest and raising
their profile, or whether they linked to the content for a financial benefit?
This is especially pertinent given that the CJEU emphasized that it is easier
for commercial publishers to verify whether it was clear that the hyperlink
contained illegal material. In the case of the blogger this may well not be the
case.

Following the judgment, GeenStijl
argued that this decision limits the freedom of press, that leaked material has
always been a source of information for the press and that the distinctions
made by the court could have an impact on this right. It remains to be seen how
and to what extent this decision will impact on EU copyright law in the future,
or the freedom of press for that matter. In any event, we have a feeling that this
is case will not be the last word about the future of intellectual property
rights on the world wide web in Europe.