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Copyright infringement by hyperlinking to illegal content

Application of "GS Media v Sanoma" in Germany

14 December 2018

On 18 November 2016, the Regional Court of Hamburg applied the CJEU's principles regarding copyright infringement via hyperlinks in a preliminary proceeding. The Court considered the hyperlink at issue to be an infringing act of communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.

Key issues:

  • Hyperlinking can be considered as "communication to the public" within the meaning of Article 3(1) of the InfoSoc Directive if two prerequisites are met: the objective condition of it being a new communication to the public and the subjective condition of the fault of the person providing the link.

  •  Whenever a hyperlink is "posted for profit" a stricter scale of fault applies, imposing broad legal obligations on the linking person to undertake all the relevant checks to secure in advance that the hyperlinked content on their website was not published without authorisation.
  • A hyperlink is posted with the intention to realise profits if the website it is posted on has a commercial nature in and of itself.

  • For now, owners of commercial websites should first check whether any linked pictures might infringe third-party copyright and, if in doubt, not post the link and/or preferably seek advice from an IP attorney.

Following a landmark decision by the Court of Justice of the European Union ("CJEU") regarding the question of whether the act of posting a hyperlink to illegal copyright content hosted on a third-party website constitutes a copyright infringement GS Media v Sanoma ("GS Media"), the Regional Court of Hamburg (the “Court”) recently applied the CJEU's principles in a preliminary proceeding, considering the hyperlink at issue as an act of communication to the public within the meaning of Article 3(1) of the InfoSoc Directive (the "Directive"). 

Background and Facts of the Hamburg-case

In the course of GS Media , the CJEU concluded that hyperlinking to unlawful sources is an act of "communication to the public" under Article 3(1) of the Directive if (i) the person setting the link knows or ought to know that the content on that other website was published illegally, or (ii) the hyperlink was posted for profit (implying the (rebuttable) presumption of infringer's knowledge). 

Closely following the CJEU's decision, the Court had to decide on a similar set of facts.  In the present case, the claimant was the author of a photograph of the historic courthouse of the German Federal Administrative Court in Leipzig, published on the website Wikimedia Commons and protected under a Creative Commons licence ("licence").  

The defendant's personal website contained a link to a website hosting a modified version of the claimant's photograph with several UFO-like objects added to the sky above the courthouse ("UFO-version"). The modification was published and linked by the defendant without complying with the licence. In consequence, the claimant filed suit at the Court for copyright infringement, asserting injunctive relief.

The decision

By granting the injunction, the Court based its ruling on Section 19a of the German Copyright Act ("GCA") implementing Article 3(1) of the Directive into German law. Article 3(1) of the Directive defines the scope of an author's exclusive right to make a work protected by copyright publicly available by wire or wireless means. The Court held that the author's exclusive right to publish its work had been infringed, considering the UFO-version a “modification” of the original work pursuant to Section 23 GCA, that may be exploited only with the author's consent. 

One possible act of exploitation may be the "communication to the public" of the modified work. However, whether hyperlinking constituted such a communication had to be determined on the basis of the principles set out in GS Media. Accordingly, the Court highlighted two prerequisites in the CJEU's decision:

  • First, the hyperlink at issue must be a "new" communication to the public, requiring the existence of an audience having access the author had not thought of at the time of the first publication of the work. 
  • Second, the person presenting the hyperlink must have acted culpably in doing so, obliging infringers to make further inquiries with regard to the source of a work if the infringers posted the link "for profit".

Here, as the claimant had never consented to the publication of the UFO-version, the hyperlink was deemed a new communication. In addition, the terms of the Creative Commons licence were not met as the picture in dispute lacked any references.  

However, the second prerequisite of “posted for profit” required the Court to take a deeper analysis. 

Broad interpretation of "posted for profit"

Since the CJEU did not provide any guidance on the nature of “posted for profit”, the Court had to decide which particular actions must be carried out based on such intent: (i) the setting of the hyperlink itself, (ii) the operation of the sub site containing the hyperlink, or (iii) the operation of the website as such? 

The Court first clarified that “posted for profit” was not to be understood in a narrow sense, such as posting a link in the context of price-per-click models, where each click on that link generates a certain amount of income. Rather, the Court interpreted the requirement of "posted for profit" was a point of departure to determine whether the specific circumstances of the case required the alleged infringer to ensure in advance that the linked content was not infringing any third-party copyright. 

In light of that broad interpretation, the Court found that the website in general had to be of a commercial nature, and not just the hyperlink itself. In case the linked content infringes copyright, the person posting the link is placed under the rebuttable presumption that the link was posted in full knowledge of the lack of the copyright holder’s consent. 

In this case, the defendant sold teaching materials over its website. Thus, due to the website’s generally commercial nature, the defendant did not comply with its obligation to check for any potential copyright infringements when posting the link. 

The German constitution and the EU Charter

In the proceedings, the defendant also raised the issue of whether the CJEU’s decision in GS Media violated German constitutional law and the EU Charter of Fundamental Rights.

However, the Court followed the detailed analysis of GS Media. Accordingly, it made clear that the established principles of EU law aimed at creating an acceptable balance between an author's interest in the effective protection of their intellectual property and a person’s interest in posting a link to communicate to the public, while also taking into account the circumstances of each individual case.

Reception of the decision and outlook

The broad definition of “posted for profit” stirred some criticism by the jurisprudence as well as the general public due to the tremendous ramifications for website owners given websites encompassing any commercial purpose whatsoever would be included. It should be noted that the judgment was issued in the first instance and was not appealed by the defendant, thus not giving an appellate court to reconsider the arguments. Further, the preliminary nature of the injunction did not allow a thorough analysis of all facts of the case by the Court. Thus, time will tell whether the present decision remains an isolated case or whether other German courts, in particular the German Federal Court of Justice, will follow the broad interpretation suggested by the Court. 

For now, owners of commercial websites should first check whether any linked pictures might infringe third-party copyright and, if in doubt, not post the link and/or preferably seek advice from an IP attorney. Otherwise, the commercial website owner might be held liable for posting the link in full knowledge of the possible lack of the copyright holder’s consent. Practically speaking, however, it will be difficult for the average person to properly assess whether a picture or any other file hosted on a third-party server infringes copyright, leading to a decrease in legal certainty in the online world. In any event, GS Media will continue to pre-occupy courts all over the EU in the coming months.