The Court of Justice of the European Union has recently received Advocate General Wathelet's Opinion in the case GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, and Britt Geertruida Dekker (Case C-160/15). The AG's Opinion stated that the act of posting a hyperlink to a website which includes content uploaded without authorisation is not an instance of copyright infringement.
The issue related to a decision by the editor of the monthly magazine Playboy, Sanoma, to commission a photoshoot of Britt Dekker. GS Media who operate the GeenStijl site published a hyperlink directing to an Australian website on which the photos of Ms Dekker were uploaded without the consent of Sanoma. GS Media refused to remove the hyperlink even though the removal was demanded by Sanoma. In addition, when the Australian website removed the photos, GeenStijl posted a new hyperlink leading to another website on which the photos where uploaded, once again without authorisation.
According to Sanoma, this act of GS Media constitutes an infringement of copyright since according to EU Directive 2001/29/EC, each act of communication of a work to the public has to be authorised by the copyright owner.
The Supreme Court of the Netherlands is seeking a preliminary ruling by the Court of Justice on the matter and notes that were it not for the hyperlink, the photos on the websites uploaded without consent would not have necessarily been easy to locate.
Advocate General Wathelet's Opinion highlights the fact that the preliminary ruling request only concerns the aforementioned hyperlinks. The copyright infringements of the photos on the websites themselves are not at issue.
A.G. Wathelet agrees that hyperlinks provide greater facility to the discovery of other websites and their contents. However, hyperlinks which lead to protected works are not making such works public themselves. The works are already freely accessible on the website and hyperlinks only serve to provide faster discovery of the works.
Therefore, the hyperlinks at issue cannot be classified as an "act of communication" within the meaning of the Directive. In fact, the placing of the hyperlink is not indispensable for the content being made available to the public. Furthermore, it is irrelevant that GS Media knew or should have known that the photos on the websites were not made public with Sanoma's consent.
In conclusion, A.G. Wathelet observes that any other interpretation of the notion of "communication to the public" would infringe one of the objectives of the Directive, that of the development of the information society in Europe.