Cour de Cassation, 24 June 2015 (docket number P.15.0194.F) (Criminal Division)
The Belgian Cour de Cassation (i.e. the Belgian Supreme Court) was asked to rule on the question whether the Brussels Court of Appeal (Criminal Division) could have lawfully decided that making available a link providing access to the full content of a copyright protected work by means of a message on a Facebook wall constitutes a copyright infringement. With this decision, the Brussels Court of Appeal rejected on 15 January 2015 the defendant’s argument that the communication to the public of the protected work would fall under the exception provided by the Belgian Copyright Act (now codified in the Code of Economic Law) for private use, as the work was only made accessible for a limited circle of people who were friends with the defendant on Facebook. The Brussels Court of Appeal reasoned that, by putting the link on a Facebook wall, the defendant made it possible to give access to the copyright protected work not only to his friends, but also to other (unidentified) internet users. The Facebook wall is indeed a publically accessible profile section where others can leave messages etc.
A Supreme Court appeal was filed against this judgement of the Brussels Court of Appeal.
By judgment of 24 June 2015, the appeal was rejected by the Cour de Cassation. With its judgement the Cour de Cassation confirms its earlier established case law that the exception for private use should be interpreted restrictively and that also any communication to the public on social or other media that is potentially accessible for a wider non-identified public falls under the exclusive rights of a copyright owner.