European Court Of Justice: Linking To Playboy Pics May Infringe Copyright

captureOn September 8, 2016, the European Court of Justice rendered a controversial decision in GS Media v. Sanoma Media, which has been acclaimed by copyright holders and heavily criticized by internet companies.

The Dutch version of Playboy magazine, published by Sanoma, was about to publish photographs of a Dutch TV celebrity, Britt Dekker, when it learned that unauthorized copies of the images were already available on an Australian website. To make matters worse from Sanoma’s perspective, GS Media’s Dutch website GeenStijl (which means “no style” in Dutch) was providing its readers with a hyperlink to these photos on the Australian site. GeenStijl is one of the 10 most visited news websites in the Netherlands and claims to provide “scandalous revelations with lighthearted items and wacky nonsense”.

Sanoma complained to the Australian website, which removed the photos. But GS Media then provided a new link to a U.S. website where the unauthorized photographs were still available for downloading. When Sanoma complained again and the U.S. website removed the photos, GS Media found other third party sites with unauthorized copies of the photographs, linked to them, and invited its readers to go and see them. At no time was GS media actually hosting the unauthorized photographs, but it appeared to be knowingly linking to third party websites containing unauthorized copies of these specific images.

Sanoma initiated legal proceedings against GS Media in the Netherlands, and the Dutch Supreme Court referred the case to the European Court of Justice. Article 3.1 of the Directive 2001/29/EC on the “harmonization of certain aspects of copyright and related rights in the information society” provides that authors must have “the exclusive right to authorise or prohibit any communication to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them,” for example from their computer when surfing on the internet. Here, the issue was whether the posting of a hyperlink to a third party website, on which content protected by copyright is freely accessible to the public without the authorization of the copyright holder, constitutes an “act of communication to the public” within the meaning of the Directive, and can therefore be a copyright infringement.

The Advocate General issued an opinion in which he answered in the negative and also stated that it was not relevant whether the defendant who provides the link is or ought to be aware of whether the copyright holder gave consent for the images to be uploaded to the third party website.

ECJ: Financial Gain Creates a Presumption of Knowledge of Infringement

In most cases, the European Court follows the opinion of the Advocate General, but this case was an exception. There has been some confusion about the actual holding of European Court’s decision. Some commentators interpreted the Court’s holding as: “linking to illegal content is copyright infringement.” According to others, the Court advised that “internet hyperlinks do not infringe copyright”. In fact, the  answer is: it depends.

The Court made a distinction between links that are provided “without the pursuit of financial gain” and those that are provided for financial gain. When links to unauthorized copies of copyrighted works are provided without the pursuit of financial gain, the links will constitute a “communication to the public,” only if the person providing the link knew or should have known that the publication of the work on the other site was illegal. On the other hand, when links are provided with the purpose of a financial gain, knowledge of infringement will be presumed. The person who provides the link will be liable unless it can establish that he or she did not know and should not have known that the content was infringing.

The European Court had previously ruled on a similar issue in 2014 in Svensson v. Retriever Sverige AB, when it held that “the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public.’” However, the Court in Sanoma found that Svensson was distinguishable because in Svensson, the third party website to which the defendant linked had published the material with the copyright holder’s consent.

It is interesting to note that several member States (Germany, Portugal and Slovakia) and the European Commission filed observations in support of GS Media’s position. However, France, which is traditionally very protective of IP rights, took the view that providing a hyperlink to copyrighted material on a third party website may be a “communication to the public” even in some cases where the copyright holder gave its consent to the work being made available on the third party website, and in cases where the person providing the link did not know that the copyright owner had not given its consent to the third party website.

The practical effect of this ruling for commercial websites that link to third party websites is that some due diligence is required with respect to checking whether the publication of content on another website is made with or without the copyright owner’s consent. On the other hand, not-for-profit websites can wait until they receive a takedown notice. The European Court tried to find a “fair balance between on one hand, the interests of copyright holders…and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information…and of the general interest.” Obviously in this particular case, the informative value of these photographs was not extremely high.

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