CJEU clarifies position on linking to infringing content - here's what you need to know.

The European Court of Justice ("CJEU") recently handed down its judgment in the widely anticipated case of GS Media v Sanoma[1]. The question the CJEU had to consider was whether hyperlinking to freely available copyright infringing content online (content posted online without the consent of the copyright holder) constitutes a 'communication to the public' (Article 3(1) of the InfoSoc Directive) and is therefore an infringement of copyright in the hyperlinked-to content.

In its decision the CJEU focussed on the knowledge of the person hyperlinking to the infringing content. It decided that if that person knew or ought to have known that the hyperlinked to content infringed copyright, hyperlinking to that content is itself a 'communication to the public' and therefore an infringement of copyright.

The knowledge of the person hyperlinking to the infringing content was assessed both objectively and subjectively by the CJEU, i.e. it will be an infringement if that person "knew or ought reasonably to have known" that the hyperlinked to work infringed copyright. Primary copyright infringement was previously considered a strict liability offence; therefore importing subjective intent into the test is potentially a very significant development.

The following factual scenarios were also considered by the CJEU:

  • where a person hyperlinks to infringing content for financial gain, it is presumed that person knows the linked to content is infringing as that person is expected to have carried out the necessary checks to ensure the work hyperlinked to is not infringing (it should be possible to rebut this presumption);

  • where a person is notified of the fact that the hyperlinked to content is infringing, hyperlinking to that content will constitute an infringement (this will be welcome news for content creators – notifying a person that has hyperlinked to their content could convert the hyperlink from non-infringing to infringing); and

  • where a person hyperlinks to copyright content in a way that circumvents the public access restrictions put in place by the site where the protected work is hosted, that will also constitute an infringement.

It seems the CJEU is struggling to reach a definitive position on how to marry existing copyright law with the functionality of the internet, and in particular the thorny problem of hyperlinks. From Bestwater to Svensson to GS Media, each CJEU decision (and indeed the Advocate General's Opinion) has questioned the case law that has come before and (in the case of the CJEU) has in effect created new law. Purists would argue these laws should made by the legislature not left the CJEU, but hyperlinks aren't a new phenomenon, and the Infosoc Directive is remarkably far behind.