The Court of Justice of the European Union (CJEU) has blurred the lines between primary and secondary copyright infringement in a decision concerning hyperlinks to leaked photos of a Dutch celebrity’s Playboy photoshoot. For businesses for which publishing on the internet is a key part of what they do, this will both strengthen their rights and cause difficulties.

Introduction

The Copyright Directive (also known as the InfoSoc Directive (2001/29/EC)) governs certain aspects of the rights of copyright owners in their works. Article 3 provides that copyright owners have the exclusive right to authorise or prohibit any communication to the public of their works.

The recent GS Media case (GS Media BV v Sanoma Media Netherlands BV and others, Case C-160/15) analysed the interpretation of Article 3 in the context of hyperlinking to a website that includes another person’s copyright material. The CJEU had already held, in Svensson (Nils Svensson and others v Retriever Sverige AB), that the posting of a hyperlink to a work would not be a communication to the public for the purposes of Article 3 if the work was already freely available on the internet. In GS Media the CJEU substantially refined the test to determine whether a particular hyperlink to a work is a communication to the public of that work.

The facts

GS Media operated a popular gossip news website, GeenStijl, in the Netherlands. In October 2011, it published an article about photos of Britt Dekker, a Dutch celebrity, which had been taken for the December 2011 edition of Playboy. That article contained hyperlinks to another website, Filefactory.com, which was a data storage website in Australia hosting the leaked photographs of Ms Dekker. The publisher of Playboy, Sanoma Media Netherlands BV, sent several demands to GS Media requesting the removal of the hyperlink. They also sent demands to Filefactory requesting the removal of the photographs. Filefactory complied with this request but the photographs appeared elsewhere on different websites and GS Media posted new hyperlinks to these websites on GreenStijl.

Communication to the public

  1. Is the content freely available?

    If the work is on the internet and there are no restrictions in accessing it then it is freely available for anyone to see it. If there are restrictions though, for example, the work is only available to paying subscribers to a website, then it is not freely available as it is only accessible to a specific section of the public who have subscribed.

    The Court in Svensson held that if a work is freely available, linking to it would not be a communication to the public as the work would not be made available to a ‘new public’, having already been made available to all internet users. If the work is not freely available, a link that allows visitors to access the work constitutes a communication to the public as the work is being made available to a ‘new public’ that could not access it before. The CJEU also confirmed in GS Media that if a person created a hyperlink that circumvents restrictions such as subscription only access, it is a communication to the public because it amounts to a deliberate intervention without which the users could not access the work.

    Questions still remain as to how freely available the works need to be. For example, geo-blocking and free-subscriptions limit access to a work but it is not clear whether, or to what extent, they would prevent the work meeting the ‘freely available’ test.
     
  2. Has the content been published with the rightholder’s consent?

    The GS Media case established that the fact that a work is freely available will only prevent a hyperlink to that work being a communication to the public if the work was made freely available with the rightholder’s consent. However, a lack of consent does not automatically make a hyperlink a communication to the public. The CJEU expressed the need for an individualised assessment to maintain a balance of rights between internet users and rightholders.
     
  3. Did the hyperlinker know, or should he have known, that the work was published without the copyright owner’s consent?

    If the material linked to is freely available but without the copyright owner’s consent, the hyperlinker will still not be liable unless he knows, or should have known, that the material was published without the copyright owner’s consent. This is designed to protect innocent individuals posting links for private purposes (e.g. on a personal blog).

    However, if the hyperlinker was in the pursuit of profit then there is a rebuttable presumption that they knew of the illegal nature of the work (i.e. that it had been published without the rightholder’s consent). The CJEU’s reasoning was that if the hyperlinking was carried out for profit, the poster could be expected to have undertaken the necessary checks to ensure that the work concerned had been published with the copyright holder’s consent. Thus, unless rebutted, the presumption is that the person in pursuit of profit had knowledge of the illegal nature of the work and it therefore constitutes a communication to the public.

    The CJEU did not explain what constitutes ‘being in pursuit of profit’ despite it being an important part of the CJEU’s test for establishing whether there has been a communication to the public. It also did not give any examples of evidence that would rebut the presumption of knowledge or the kind of checks expected to be undertaken.

    The CJEU noted that knowledge could be fixed to hyperlinkers by rightholders notifying them that they had not consented to the publication of the work. Once notified, the poster then has the requisite knowledge to establish the communication to the public. The CJEU further noted that if that person then refuses to take down the link, they cannot then rely on the exceptions from liability in Article 5(3) of the Copyright Directive.

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Comment

The CJEU’s decision attempted to balance the rights of freedom of expression and the rights of copyright owners, and the need not to unduly restrict the flow of information over the internet. Within this context, it also distinguished between those acting commercially and private individuals.

The Court noted the importance of the internet to freedom of expression and the difficulty, particularly for individuals, in ascertaining whether the works they wish to link to appear on the linked to website with consent.

Although hanging the question of whether there has been a communication to the public on questions of pursuit of profit and of knowledge may make little sense at first glance, the distinction between private users and commercial operators suggests a pragmatic approach to try and balance the various interests at play. One would not expect private users to have to carry out checks every time they wanted to post a link for private purposes, whilst it does not seem unreasonable to ask commercial operators to carry out such checks (or at least bear some risk) when they wish to post a link for profit. The test may be somewhat crude but the fact that it is a rebuttable presumption of knowledge for those in pursuit of profit leaves some room for flexibility at least.

The Court also noted that rightholders have the possibility of informing infringers of the illegal nature of the publication of their work and of taking action against them if they refuse to remove the link, creating a form of ‘notice and take-down’ system for primary copyright infringement.

GS Media establishes that primary copyright infringement, at least in the case of the communication to the public right, is no longer strict liability but now takes a similar approach, at least insofar as hyperlinking is concerned, to secondary liability by considering the defendant’s state of mind. If knowledge is now to be considered part of primary infringement, this blurs the divide between the primary and the secondary infringer. How this will be reconciled across all EU member states and across the different exclusive rights of the copyright owner in different contexts remains to be seen.

Practical guidance

For businesses for which publishing on the internet is a key part of what they do, this will both strengthen their rights and cause difficulties. Whilst for its own copyright content, it will have stronger rights, including being able to take advantage of the apparent ‘notice and take-down’ system, for content which it wishes to link to, it will now be extremely difficult to verify the legality of each source. For businesses based on fast news (ever more the case in today’s society), this will hinder the ability to provide immediate access to other content, or increase the risk in doing so.

Commercial hyperlink posters should carry out checks to ensure that the copyright owner’s consent has been obtained for the work to be published. Given that it is unclear what kind of checks need to be carried out to rebut the presumption of knowledge, the most cautious approach would be to obtain the rightholder’s consent. As a minimum, the poster should use best endeavours to ascertain whether or not consent has been given. Commercial hyperlink posters should consider the risk posed by their business and devise an appropriate strategy to balance their compliance burden and the commercial risk. This balance should be monitored as the scales could be tipped, for example, by a particular article going viral.