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Linkers beware

The Court of Justice of the European Union (“CJEU”) has recently issued a decision in GS Media v Sanoma confirming that posting hyperlinks to third party web content may in certain cases infringe copyright.

It is advisable to review any hyperlinks provided on your website to ensure that they do not fall foul of this decision.

In this case, Sanoma (the publisher of Playboy magazine) was granted the exclusive right by the photographer, Mr Hermes, to publish nude photographs of Britt Dekker, a Dutch presenter and media personality, in the Dutch edition of its magazine.  Before publication of the photographs, GS Media received a message from a person using a pseudonym, which included a hyperlink to an electronic file hosted on the website at in Australia which contained the photographs in issue.

Despite requests from Sanoma for GS Media not to use the photographs, GS Media published an article which contained part of one of the photographs in issue which ended with the following words:

“And now the link with the pics you’ve been waiting for.”

By clicking on a hyperlink accompanying that text, users were directed to the Filefactory website, on which another hyperlink allowed them to download 11 electronic files each containing one of the photographs.

Further articles were published by GS Media containing the relevant hyperlink.

Sanoma issued proceedings against GS Media in The Netherlands for copyright infringement which led to the Dutch Court referring three questions to the CJEU.  The CJEU reformulated the questions into the following question:

“…whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.”

The CJEU considered previous case law in particular Svensson and Others, in which the CJEU interpreted Article 3(1) as meaning that posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’. The CJEU held that:

  • There is no definition of ‘communication to the public’ under the relevant Directive.  As a consequence, it needs to be interpreted in light of the objectives pursued by the Directive namely: (i) establishing a high level of protection of authors thereby allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public; and (ii) a fair balance between the interests of copyright owners and the protection of the interests and fundamental rights of internet users such as freedom of expression and information.
  • The concept of ‘communication to the public’ includes two cumulative criteria namely an ‘act of communication’ of a work and the communication of that work to the ‘public’.
  • After considering previous case law, the CJEU stated that the concept of ‘communication to the public’ requires an individual assessment in each particular case.  For the purpose of this assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent.  Such factors include:
    1. The indispensable role played by the user and the deliberate nature of its intervention – The user makes an ‘act of communication’ when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to the public and in doing so, gives access to the work when, in principle, those members of the public would not have been able to view it without those actions.
    2. Was the disclosure made to a ‘new’ public? – ‘Public’ refers to a fairly large number of people.  It is settled case law that to be categorised as a ‘communication to the public’ a protected work must be communicated using a specific technical means, different from those previously used or, failing that, to a new public (i.e. a public that was not already taken into account by the copyright holder when they authorised the initial communication to the public of their work).
    3. Was the relevant communication of a profit-making nature?
  • In the present case, the circumstances were different to Svensson as no consent had been given by the copyright holder.
  • Where it is established that a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example because the copyright owner had notified him of this, that would constitute a ‘communication to the public’.  The same would apply if the hyperlink allowed users of the website to by-pass restrictions on a website to limit public access to a copyright work to subscribers.
  • Where the posting of a hyperlink is for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work is not published illegally. Therefore, in such circumstances, it is presumed that the posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to the publication.  Therefore, there is a rebuttable presumption that the act of posting a hyperlink to a work which has been illegally placed on the internet constitutes a ‘communication to the public’.
  • Bearing in mind the above factors, the CJEU stated that it appears, subject to the checks to be made by the referring court, that there had been a ‘communication to the public’ in this case.  In particular, the CJEU stated that it appears that GS Media knew that Sanoma had not authorised the publication of the photographs and therefore cannot rebut the presumption that the posting of the hyperlinks occurred with the full knowledge of the illegal nature of the publication.

Roy Crozier, partner in the Intellectual Property team said: “Businesses now need to be careful when posting hyperlinks on their websites as this may expose them to a claim for copyright infringement as it risks the presumption that the acts are a communication to the public if the content on the originating website is illegal.  However, linking to other websites will still not be infringing copyright provided the publication of the information has been consented to by the original copyright owner.  However, guidance needs to be provided as to what is meant by a “communication of a profit-making nature” for example would this be the case where a website operated for a commercial purpose makes no money from advertising based on the traffic it attracts?