The Court of Justice of the European Union (CJEU) has made a further important judgment on what constitutes a communication to the public under Article 3(1) of the Copyright Directive (2001/29) ("InfoSoc") in the case of GS Media BV v Sanoma Media Netherlands BV and others (Case C-160/15). Shamefully, if you lift the covers on this particular case, you will not have to look far before you find a dirty magazine.

In particular, the court was asked to decide whether publishing a hyperlink to a third party website which contained photos of a Dutch TV presenter – images that were freely available to the public online, but posted without the consent of the rights holder (Sanoma, publishers of Dutch Playboy magazine) – could be considered a communication to the public under Article 3(1).

The facts of the case

The first claimant, Sanoma, was the exclusive licensee of photos that were all set to appear in the December 2011 edition of the magazine. However, in October of that year a Dutch website, the defendant and owner of website GeenStijl (which describes its content as "investigative journalism with light-hearted items and wacky nonsense") published a message from an anonymous poster that included a hyperlink to a file on a third party data storage site that contained the said photos.

Whilst the claimant successfully managed to get the photos removed from the third party site, the defendant refused to remove the original posting that contained the hyperlink. The defendant, taking issue with the claimant's demands, in fact decided to aggravate matters by publishing further hyperlinks to other third party websites which also contained the same photos.

The prior legal position

The concept of "communication to the public" and its application to the web (in particular the promulgation of content via links to external sites) has been a major preoccupation of the CJEU over the past few years, at least in terms of its copyright law jurisprudence.

Article 3(1) of the InfoSoc Directive states that: "Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available 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."

In the 2014 case of Svensson (which we reported on at the time), it was held that providing a hyperlink to freely accessible protected works is not a fresh act of "communication" for the purposes of Article 3(1) where the work is not communicated to a new public. The claimants in this case were a group of journalists who objected to the defendant, a Swedish website, providing hyperlinks to their articles that had been published, with the claimants' permission, on a Swedish newspaper's freely accessible website.

As the protected works had originally been published with the journalist's consent – and in a format freely available on the internet – the works were deemed to have been authorised by the copyright holder to have been communicated to the world and subsequent hyperlinking did not constitute an act of communication to a new public. It was implied however that the case would have been concluded differently had the original posting been made unlawfully (i.e. without the rights holder's consent) – or if the act of linking acted to work around a subscription paywall (i.e. in effect communicating it to a 'new' public who did not otherwise have free access).

The key distinction between Svensson and the GS Media case is that the copyright holder had not consented to the protected works being published. The Supreme Court of the Netherlands referred a number of questions to the CJEU on whether the hyperlinks could be considered a communication to the public under the Article.

The decision

In reaching their decision, the CJEU considered the importance of freedom of expression and the restrictive implication of categorising all hyperlinks to material published on the internet without the copyright holder's original consent (which of course happens countless times every day online, knowingly or not) as a communication to the public. On the other hand the CJEU also raised the rights of the copyright holder to have their intellectual property protected.

The CJEU acknowledged the difficulty that creators of hyperlinks faced in (1) determining whether material on the websites to which they wanted to post a hyperlink were protected works; and (2) knowing whether consent had been gained by that website to publish those works. Furthermore the issue is further complicated by sub-licensees and the fact that the website content could easily be changed after the creation of the hyperlink, and therefore potentially without the creator of the hyperlink realising.

The CJEU were clear that (as widely held since Svensson)where a hyperlink was created to circumvent the need to pay to view the material, or avoid other restrictions on access, it would be wrong for users of the hyperlink to benefit from any kind of judicial loophole. Furthermore where the creation of the hyperlink was for profit (namely, in respect of any posting on a commercial site, rather than peer-to-peer reposting as part of the general 'conversation' of the internet), the CJEU ruled that there should be a rebuttable presumption that the person posting the hyperlink had checked that the works were (1) protected; and (2) that consent had been received to publish the works on the website.

It was therefore decided in the case that, as (i) the defendant was operating their website for profit and (ii) it was accepted that the defendant had been aware that the photos had been published without the copyright holder's consent, there had been an infringing communication to the public within the meaning of the InfoSoc Directive Article 3(1).

Summary

In order to establish whether posting hyperlinks to protected works without permission (even those which are freely available on the internet) constitutes a communication to the public, it needs to be determined whether the creator of the hyperlinks knew – or should reasonably have known – the unlawful nature of the publication of those works being linked to. Where hyperlinks are provided for profit then there is a rebuttable presumption that the creator ought to know this, or ought to have checked. Hence, since GS Media, such commercial activity is carried out at clear risk.