Hyperlinking to unauthorised content: ECJ imposes conditions | Practical Law

Hyperlinking to unauthorised content: ECJ imposes conditions | Practical Law

The European Court of Justice has looked again at the legality of hyperlinking and considered whether it is unlawful to post hyperlinks to content which is freely available on another website without the copyright owner's permission. The decision is important in striking a balance between protecting freedom of expression and the information of internet users on the one hand and the rights of copyright owners on the other.

Hyperlinking to unauthorised content: ECJ imposes conditions

Practical Law UK Articles 2-633-7919 (Approx. 4 pages)

Hyperlinking to unauthorised content: ECJ imposes conditions

by Susie Middlemiss and Laura Balfour, Slaughter and May
Published on 29 Sep 2016 • European Union, United Kingdom
The European Court of Justice has looked again at the legality of hyperlinking and considered whether it is unlawful to post hyperlinks to content which is freely available on another website without the copyright owner's permission. The decision is important in striking a balance between protecting freedom of expression and the information of internet users on the one hand and the rights of copyright owners on the other.
The European Court of Justice (ECJ) has looked again at the legality of hyperlinking and considered whether it is unlawful to post hyperlinks to content which is freely available on another website without the copyright owner’s permission (GS Media BV v Sanoma Media Netherlands BV and others C-160/15).
The ECJ held that where hyperlinks have been provided without the pursuit of financial gain by someone who did not know or could not reasonably have known that the links were to unauthorised content, the link is not a communication to the public and therefore not actionable under Article 3(1) of the Copyright Directive (2001/29/EC) (Article 3(1)). However, where a hyperlink has been provided by someone acting for financial gain, knowledge of illegality must be presumed. The link would then amount to a communication to the public and be actionable by the copyright owner unless the presumption of knowledge can be rebutted.
The decision is important in striking a balance between protecting freedom of expression and the information of internet users on the one hand and the rights of copyright owners on the other. While rights holders will welcome the protection they have against commercial operators, those operators will face increased burdens in carrying out checks on the content they wish to hyperlink to. In addition, anyone who knows or ought to know that they are publishing a hyperlink to unauthorised content will be at risk of liability. It will therefore be important for rights holders to give notice of unauthorised material since that should provide the requisite knowledge needed to establish liability.

The dispute

GS Media BV operates a popular news and gossip website, GeenStijl, in the Netherlands. In October 2011 it published an article and links to another website, Filefactory.com, containing photographs of Britt Dekker, a Dutch television personality. These photographs were due for publication in the December 2011 edition of Playboy magazine but were leaked online before they were published.
Sanoma Media Netherland BV, the publisher of Playboy, sent GS Media several demands requesting the removal of the hyperlink from the GeenStijl website. GS Media refused. Sanoma therefore brought proceedings against GS Media claiming that the use of hyperlinks on the GeenStijl website infringed copyright.

Previous decisions

Article 3(1) provides for authors to have the exclusive right to communicate their works to the public, including by wireless means and arranged so the public can choose when to access them. ECJ case law has established that a communication to the public under Article 3(1) includes two cumulative criteria:
In Nils Svensson and others v Retriever Sverige AB, the ECJ held that the provision of hyperlinks has the potential to communicate a work (C-466/12; see News brief “Linking and framing copyright material: guidance at last”). However, where a work is already freely available on the internet, infringement will only arise when a hyperlink makes it available to a new public, for example by circumventing restrictions put in place by the copyright owner such as the use of a paywall.
The Dutch Appeal Court in GS Media sought guidance from the ECJ on whether Svensson established that there is a communication to the public if the work has been freely accessible but published without the consent of the copyright owner.
In April 2016, taking a different approach to the ECJ in Svensson, the Advocate General (AG) opined that these hyperlinks would not constitute an act of communication as the hyperlinks only facilitated the finding of these works and GS Media’s intervention could not be considered indispensable in order to access the works (see News brief “Hyperlinking: new guidance on copyright infringement”). Consequently, it was immaterial whether the copyright owner had authorised the work being placed on the other websites.

The ECJ’s decision

The ECJ interpreted “communication to the public” in the light of the objectives of the Copyright Directive, balancing the rights of copyright owners and users. It confirmed the requirement of the two cumulative criteria and also the carrying out of an individual assessment taking into account a number of interdependent factors including whether:
  • The role played by the user is indispensable.
  • The user’s intervention is deliberate.
  • The communication is of a profit-making nature.
Scope of Svensson. The ECJ stressed that the principle that there is no communication to the public where material is not available to a new public only refers to the posting of hyperlinks made freely on another website with the consent of the rights holder. Svensson and the later order in BestWater International GmbH v Mebes underlined that every act of communication to the public must be authorised by the copyright owner and it cannot therefore be inferred from these cases that posting hyperlinks to illegal content would be excluded as a matter of principle from the concept of communication to the public (C-348/13).
Individual assessment. Having established the scope of Svensson, the ECJ carried out an individualised assessment. It noted that where the posting of a hyperlink is done by a person not pursuing a profit, it is necessary to take into account the fact that the person does not know, and could not reasonably know, that the work has been published on the internet without the consent of the copyright owner.
However, where the person knew or ought to have known that the hyperlink gave access to a work illegally placed on the internet (for example where, as in GS Media, the person had been notified) then the posting of that link may be considered a communication to the public. The same would apply to a person posting a link that circumvented measures that the copyright owner had put in place to restrict access.
The ECJ also made it clear that operators posting for financial gain are expected to carry out necessary checks to ensure that the work is published with the consent of the rights holder. For these entities, knowledge is presumed and where that presumption cannot be rebutted, the act of posting a hyperlink to an unauthorised work will constitute a communication to the public. As GS Media had provided the hyperlinks for profit on its GeenStijl website, knowing that the photos had been published without Sanoma’s consent, it was unable to rebut that presumption.

Practical implications

Departing from the AG’s opinion, which provided copyright owners with no recourse to take action under the Copyright Directive, and going further than the ruling in Svensson, the ECJ has sought to achieve a fair balance between the interests of ordinary users and the protection of the rights of copyright owners. The ECJ stressed the importance of hyperlinks in the current internet architecture, and that ordinary users who do not pursue a profit and who cannot reasonably check whether the initial communication was authorised should be free to post hyperlinks.
The ECJ has, however, placed an increased financial burden on those publishing links. In the world of fast-moving news reporting, this will hamper the ability of publishers to provide immediate access to third-party content. This will be seen by copyright owners as justifiable and they will welcome the conditions that the ECJ has imposed. As the ECJ noted, rights holders can put website operators on notice that their work has been published without consent. It is likely that copyright owners will now take a more active role in the protection of their content online with, for example, the issuing of notices and take-down notices.
It remains to be seen how far the “for profit” requirement will extend; for example, whether it will be akin to a general commercial use requirement or intended to catch only the activities of profit-making commercial media websites such as GeenStijl.
In addition, the ECJ’s development of the communication to the public right is interesting, with the requirement of knowledge now being a key factor in determining liability. Knowledge also contains a subjective element of what the person linking ought to have known, which brings in a secondary infringement element to what is a primary infringement.
This decision comes at an important juncture for policy makers in the EU with the European Commission’s unveiling on 14 September 2016 of a copyright package intended to modernise copyright law and make it fit for purpose in the digital age (https://ec.europa.eu/digital-single-market/en/news/promoting-fair-efficient-and-competitive-european-copyright-based-economy-digital-single-market).
Susie Middlemiss is a partner, and Laura Balfour is a professional support lawyer, at Slaughter and May.