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Illegalities of hyperlinking highlighted in latest European judgment

In 2014, Court of Justice of the European Union (CJEU) handed down a judgement (Svensson (C-466/12)) that caused concern amongst businesses and copyright holders. That judgement confirmed that hyperlinking constituted a 'communication to the public' under Article 3 of the InfoSoc Directive (2001/29). It also indicated that if rights holders do not prevent free access to works posted on a website then they no longer have the right to prevent others communicating the works to the public via links pointing at those freely accessible works.

While the decision provided some comfort to websites sharing other people's content through hyperlinking, given the relatively limited circumstances of the case, it could not be taken as a green light to copy any online content.

Among other unanswered questions was in relation to the position where a website owner links to material that had itself been published without the right holder's consent. The recent judgment in GS Media v Sanoma Media (C-160/15) provides some welcome clarity. 

Background

GS Media operated a website which linked to another site where pictures of the Dutch model, Britt Dekker, could be illegally downloaded. Sanoma Media (publisher of Playboy magazine), owner of the copyright in the images, requested that the links be removed. The interesting point here was that the images had not been published by Sanoma and were due to appear in a future edition of Playboy magazine.

GS Media failed to remove the link which led to a claim and the matter eventually made its way to the Dutch Supreme Court which sought guidance from the CJEU.

CJEU's Decision

From the official release, it was clear that the CJEU recognised that the internet is important to the concept of freedom of expression and of information. It was also clear that the CJEU recognised that hyperlinks contribute to the internet's sound operation and to the exchange of opinions and information as well.

It accepted that it would be difficult for, for example, individuals who wish to post links to determine whether the content involved was protected and, if necessary, whether it had been published with consent.  The judgement makes it clear that website owners can be liable for hyperlinks, linking to illegally posted material in the following circumstances:

  • The links were posted for profit.  This is CJEU's attempt to distinguish between someone personally posting a link on Facebook and a business posting a link in order to gain revenue from the traffic created. Where the links are posted for profit, there is a rebuttable presumption that this has been done in the full knowledge of the protected nature of the work and the possible lack of consent by the right holder to publish the works. It is reasonable to assume that rebutting the presumption will require some forward planning and investment by the link and reliance on the rebuttal should be treated with caution.
  • The person knew or ought reasonably to have known that the hyperlink posted provided access to works illegally published - perhaps where the website owner was aware that a fee or a subscription would normally be required in order to view the material.

Implications

It seemed that the decision in Svensson saw the pendulum swing too far in favour of the freedom of the internet and this decision, certainly in so far as it relates to commercial linking to illegally published content, offers the rights holder better prospects for regaining control of their assets following an infringement.

Businesses should take care to consider the origin of any content they may link to and ensure that any content linked to has been published with the consent of the rights holder. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.


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