The posting of hyperlinks is a common occurrence on the web; it directs its audience with ease to information on another website, makes information more freely accessible, and is the web’s answer to the footnote. The European Court of Justice (‘ECJ’) had previously indicated that the posting of hyperlinks did not constitute copyright infringement (Svensson and Others v Retriever Sverige AB (C466/12)). However, in the landmark ruling of GS Media BV v Sanoma Media Netherlands BV and Others (C160/15), the ECJ held that the posting of hyperlinks to protected content can now infringe copyright.
GS Media BV v Sanoma Media Netherlands BV and Others– the facts
In 2011, GS Media BV (‘The Defendant’) a Dutch blog that publishes news, posted a hyperlink on its website that directed its audience to an Australian website offering the illegal download of photographs owned by Sanoma Media Neverlands BV (‘the Claimant’). Despite several requests from the Claimant, the Defendant refused to remove the hyperlink, even reposting new hyperlinks to other websites where the photographs could be viewed illegally once the Australian website had removed the photographs. The Defendant argued amongst other points that, if it could not freely hyperlink, it would make it harder for news websites to report current affairs. The ECJ in making its decision had to balance the interests of copyright holders against the importance of free speech and the free circulation of information on the internet.
“Communication to the Public”
Previously, the posting of a hyperlink had not constituted a “communication to the public” for the purposes of copyright infringement under Article 3(1) Directive 2001/29 as (a) hyperlinks in themselves do not transmit a work to a “new public” but merely reference already available material and (b) in earlier case law before the courts, the hyperlinks were linked to websites publishing works with consent. In this case, the ECJ made the distinction that the hyperlink had diverted its audience to works that had been published without the right holder’s consent. In such a scenario, it was necessary to determine whether the hyperlink to unauthorized works was posted in the pursuit of financial gain. It was held that, if a hyperlink is posted as part of a non-commercial activity, then there would be no “communication to the public” if the person posting the hyperlink did not know or could not reasonably have known the illegal nature of the publication of the works on the other website. Conversely, there would be a “communication to the public” if the person posted the hyperlink for profit; in this case, the person is presumed to have carried out “necessary checks” to establish that the works on the other website are published legitimately.
Hyperlinks to protected works can now infringe copyright. The private individual appears to be protected if he unknowingly hyperlinks to infringing content. However, for-profit online organisations will now have to assess the status of the information they want to hyperlink or risk a potential infringement claim. For online media and news organisations, this is likely to be an onerous task where they hyperlink to stories and information leaked online. They will argue that the ECJ’s decision will restrict their use of hyperlinks, and thus restrict news reporting and an open internet. It remains to be seen how this judgement will impact search engine operators.
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