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Judgment of the CJEU

Hyperlinking to illegal sources infringes copyright

14 December 2018

The CJEU has recently concluded that hyperlinking to unauthorised content is an act of communication to the public when the person posting the hyperlinks knows (or ought to have known) that the contents have been published illegally.

Background

In 2011, GS Media BV published an article and a hyperlink on the internet, directing viewers to an Australian website where certain photos which had been taken for Playboy magazine were made available without the consent of their copyright holder, Sanoma Media Netherlands BV. Despite Sanoma’s demands, GS Media refused to remove the hyperlinks. 

Sanoma brought the issue before the Dutch Courts, claiming, amongst others issues, copyright infringement. After several decisions and appeals, the case was referred to the Supreme Court of the Netherlands, which decided to stay the proceedings and refer questions to the Court of Justice of the European Union for a preliminary ruling.

In essence, the questions can be summarised as follows: in what possible circumstances does posting a hyperlink on a website to protected works, that are freely available on another website without the consent of the copyright holder, constitute a ‘communication to the public’ within the meaning of Article 3(1) of the InfoSoc Directive1. This is important as communications of works to the public require authorisation from the relevant rightholders.

Decision of the CJEU

In a ruling issued on 8 September 2016, the CJEU deviated from the opinion of the Advocate General and decided that the posting of hyperlinks to protected works freely available on another website without the consent of the copyright holder may, indeed, constitute an act of communication to the public. Although a superficial consideration of the matter could lead to the conclusion that this ruling contravenes previous decisions reached by the CJEU in similar hyperlinking cases, there is an essential difference that cannot be disregarded.

In Svensson and BestWater, the relevant hyperlinks gave access to content that had been made available with the consent of the rightholders on freely accessible websites. By giving their consent, the copyright holders had accepted and assumed that their works could be viewed by all internet users. Consequently, the posting of the hyperlinks did not add a ‘new public’ to the audience already taken into account by the rightholders.

Nevertheless, this rationale cannot be applied to the present case. As Sanoma never gave consent to the publication of the pictures at issue on the internet, the hyperlinks posted by GS Media gave access to a new public neither considered, nor accepted by their copyright holder.

Whilst the lack of consent is an important step to assess whether a hyperlinking practice entails an act of communication to the public, it is not sufficient. As explained by the CJEU, it also necessary that the person posting the relevant hyperlinks was acting deliberately, in knowledge of the consequences of his actions. Taking that into account, the CJEU mentions three circumstances under which it shall be understood that hyperlinking to unlawful sources constitutes an act of communication to the public.

First, when the person posting the relevant hyperlinks knew or ought to have known that he was providing access to works unlawfully published on the internet, for example if he was notified thereof by the copyright holders.

Second, when the hyperlinks were posted for profit. In these events, full knowledge is presumed to exist, as it can be expected that the person who posted the links carried out the necessary checks to ensure that the concerned works were not illegally published.

Last, when the hyperlinks allow users to circumvent restrictive measures taken by a site where protected works are published, such as limiting access to the site’s subscribers. It states that these are acts of communication to the public, as posting the hyperlinks constitutes a deliberate intervention necessary to access the unlawful works.

Conclusion

In the CJEU’s words, the interpretation given by the judgment to Article 3.1 of the InfoSoc Directive provides the high level of protection authors sought in that piece of law.

From now on, copyright holders in the EU may act not only against the initial publications of their works on a website. Under certain circumstances, they will also have strong arguments to denounce hyperlinking practices.