On 8 September 2016, the Court of Justice of the European Union once again* considered the problem of linking as a form of infringement of copyrights on the Internet. In the case GS Media against Sanoma Media Netherlands (C-160/15) the Court found, in essence, that linking may constitute a ‘communication to the public’ and in consequence infringe the copyright, if it is done with knowledge that the content is unauthorized. If the link is posted for profit, the knowledge is presumed.

The Court's standpoint significantly changes the current approach which assumed that, as a rule, the posting of a link does not lead to infringement of copyrights (or more precisely - does not constitute communication to the public of the copyrighted work). As linking is a building block of any web service (and in social media the main way to publish any content), the judgement will affect every business active online.

Implications

From 8 September the entrepreneurs (but not only them) should use links to third parties websites with great caution. This in particular applies to the so-called "liking" or "sharing" of graphics, images or articles from websites or fan pages of another entity.

If there is doubt whether content is authorized, linking should be avoided. Unfortunately, this will not be easy in practice - trying to, for example, link to an article, we de facto refer to a specific page which, apart from the article, may contain other elements protected by copyrights (pictures, graphics, etc.).

The same conclusions apply to private individuals. The difference is mainly the weight of evidence – it must be proven that a private individual knew about the illegal nature of the content which he/she linked, while the entrepreneur has to prove himself (rebut the presumption) that he did not know and could not reasonably have known it.

See a diagram in the form of an algorithm that will help to better understand the standpoint contained in the above mentioned Court's judgment.

* The subject of linking content on the Internet for the first time has been widely addressed in the decision Svensson and others against Retriever Sverige (ref. no C-466/12) from 13 February 2014.