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The Rules of Hyperlinking

Posting a hyperlink to copyright works that appear on the internet without a copyright owner's consent is not an infringement, unless done for financial gain. So the CJEU ruled on 8 September 2016 in GS Media v Sanoma (Case C – 160/15).

The case (GS Media v Sanoma (Case C – 160/15)) concerned the posting on a file-sharing website operated by GS Media of hyperlinks to other websites enabling downloads of photos of Dutch reality TV star and presenter Britt Dekker.

Sanoma, the Dutch publisher of Playboy magazine, asked the photographer Carli Hermès to take the photos for exclusive publication in Playboy magazine, and Mr Hermes granted Sanoma authorisation to exercise the rights and powers arising from his copyright.

The background to the copyright infringement dispute

GS Media operates GeenStijl.nl, a popular Dutch news and light journalism blog which published an article containing part of one of the Playboy photos of Miss Dekker and a hyperlink to Filefactory.com, a data storage website located in Australia. Filefactory.com in turn contained another hyperlink allowing users to download files containing the photos.

At Sanoma’s request, the photos were removed from Filefactory.com. However GS Media refused to remove the offending article and hyperlink from Geenstijl.nl. The photos were later duly published in Playboy magazine.

Sanoma, Playboy and Miss Dekker largely succeeded against GS Media in the Amsterdam District Court, but the Amsterdam Court of Appeal set aside the decision, holding that by posting the hyperlinks on Geenstijl.nl, GS Media did not infringe Mr Hermès’ copyright, as the photos had already been made public on Filefactory.com.

The Supreme Court of the Netherlands felt that it could not infer from previous case law whether there was a ‘communication to the public’ if the work had in fact previously been published, but without the consent of the copyright holder. It requested a preliminary ruling on the issue from the CJEU.

Communication to the public: the new CJEU definition

Key to the CJEU case was whether GS Media’s hyperlinks constituted a communication to the public within the meaning of Article 3(1) of Directive 2001/29 (the Info Soc Directive).

Here is the CJEU’s ruling in full:

“Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.”

Previous rulings on Communication to the Public

The CJEU had previously held (in Svensson and BestWater) that to be categorised as a ‘communication to the public’, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’.

A ‘new public’ is a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work.

In Svensson, the court held that posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’. In BestWater, the court extended the principle to links using framing.

The logic here is that as soon as and as long as a work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public.

What the new CJEU ruling means for hyperlinking and copyright

Whereas Svensson and BestWater concerned the posting of hyperlinks to works which have been made freely available on another website with the consent of the copyright holder, GS Media concerned the situation where content was freely available on another website, but without the consent of the copyright holder.

The latest decision in GS Media underlines the fundamental importance of consent to the communication of a work to the public. Article 3(1) requires that every such act must be authorised by the copyright holder.

The court noted the particular importance of the internet to freedom of expression and of information, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.

The court also acknowledged that it may sometimes be difficult to ascertain whether a website to which hyperlinks are expected to lead provides access to works which are protected and whether the copyright holders of those works have consented to their posting on the internet.

Hyperlinking and copyright: the financial distinction

The decision ensures that internet users who innocently post hyperlinks for no financial gain will not be liable for copyright infringement. However those who post hyperlinks for financial gain will be expected to have carried out the necessary checks to ensure that the works concerned are not illegally published on the website to which the hyperlinks lead.

Accordingly they will be subject to the rebuttable presumption that they have full knowledge of the protected nature of the works and the possible lack of consent to publication on the internet by the copyright holder.

The CJEU has made a bold ruling which introduces a subjective element to the usually strict question of liability for copyright infringement. This is new territory for UK courts and practitioners. Before considering the legality of any proposed or already published hyperlinking, advisors will need to make sure that they are fully aware of their clients’ related intentions, knowledge and business objectives.

If you would like to discuss these issues in more depth please contact Chris Pearson at chrispearson@lambchambers.co.uk

Chris Pearson / 10th Oct 2016


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