The Advocate General of the Court of Justice of the EU (CJEU) has stated in a legal opinion that posting a link to a website that contains “freely accessible” copyright infringing content should not itself amount to copyright infringement.

The non-binding opinion given by the Advocate General relates to a case to be ruled on by the CJEU later this year brought by Sanoma Media Netherlands BV (Sanoma), the publisher of Playboy magazine, against GS Media BV (GS Media).

Alleged infringement over Playboy pictures Sanoma commissioned a Playboy photoshoot of Britt Dekker, a popular figure in the Dutch media. GeenStijl, the website operated by GS Media, posted a hyperlink to a third party website where users could download the commissioned pictures. GS Media then repeatedly refused Sanoma’s requests to remove the hyperlink from its website and even posted links to alternative websites, where the photographs could also be downloaded. As a result of this, the publisher issued a claim in the Netherlands for copyright infringement against GS Media.

The case was referred by the Supreme Court of the Netherlands to the CJEU for a preliminary ruling on certain questions regarding the interpretation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the InfoSoc Directive) in respect of hyperlinking to works, which are freely accessible on another website, but which have been posted without the copyright owner’s consent. The Advocate General was asked to give a preliminary opinion on whether this amounted to copyright infringement under the InfoSoc Directive.

The Advocate General’s view Under European law, copyright holders have the exclusive right to control the communication to the public of their works. The Advocate General stated that an internet user posting a hyperlink to infringing content does not constitute an act of communication to the public within the meaning of the Directive, where the hyperlink is not indispensable to the making available of the infringing works in question, for example, where no security measures have been bypassed by using the hyperlink.

In the absence of an ‘act of communication to the public’, the fact that the person or website posting the link is or ought to be aware that the copyright holder has not authorised the placement of the works in question on that other website or that, in addition, those works had not previously been made available to the public with the copyright holder’s consent, is irrelevant. Further, it is irrelevant that the hyperlink facilitates or simplifies users’ access to the works in question.

The Advocate General expressed the view that an interpretation to the contrary would make internet users who post hyperlinks to material freely available on the internet vulnerable to copyright infringement action. He considered that internet users in general were not aware and do not have the means to verify whether the initial communication to the public of a protected work freely accessible on the internet was effected with or without the copyright holder’s consent. If internet users risked liability for copyright infringement every time they posted a link, they would be much more reluctant to do so. The Advocate General felt that this would impede the proper functioning of the internet and limit the development of the information society in Europe, one of the principal objectives of the InfoSoc Directive.

The Advocate General did, however, leave open the possibility of infringement occurring if “publication of hyperlinks by the operator of a website was indispensable to the works being made available” to a wider public, for example, if the hyperlink enabled internet users to circumvent restrictions on the third party sites which were linked to.

What next? It will be interesting to see whether the CJEU follows the approach recommended by the Advocate General when issuing its formal ruling in the case later this year. The CJEU will often follow the view set out in an Opinion, although it is not obligated to.

If the Opinion is followed, it would completely shut down the line of argument that a hyperlink would infringe copyright if it linked to a site on which the copyright work had been posted without the copyright owner's consent. This could cause serious damage to the creative community’s efforts to restrict the clear infringement of their content. On the other hand, it would be welcome news to internet service providers who generate income by hyperlinking to infringing material, as the decision would secure their business going forward.

Copyright owners may well desire the approach whereby certain websites, whose sole purpose is to link to infringing content, and who do so in full knowledge that the third party websites contain infringing content, are themselves liable for copyright infringement. This would not capture general internet users, who may post links to infringing material inadvertently. Despite the merits to this argument, copyright owners await the CJEU’s decision in fear that the facilitation of this breach of copyright will continue.

You can read the full Opinion here.