Last Thursday, the Court of Justice of the European Union (CJEU) handed down a long-awaited judgment on the separation of legal and illegal hyperlinking (see verdict of 8th September 2016, C-160/15GS Media). At the heart of the decision is the question of when a hyperlink is to be deemed a “communication to the public” and thereby an act of exploitation of copyright. The importance of clear definition is reflected in the manifold services offered online in today’s digital world (e.g. TV replay offers, real-time streaming, online newspapers or social media).

Generally, one has to look at whether the content has been published with or without the author´s consent. However, this might be beyond the knowledge of the Internet user setting the link. With the current decision, the CJEU clarifies that hyperlinking in a commercial context triggers certain due diligence obligations. In essence, the judges establish a rebuttable presumption for posting the commercial hyperlink with full knowledge of the illegal nature of the content. Thus, the judgment adds a further important detail to the CJEU’s jurisprudence on hyperlinks following the landmark cases Svensson (C-466/12, see also our blog post) and BestWater International (C-348/13).

Background

Hyperlinks and copyright are hot topics worldwide[1]. Quite a number of court decisions were handed down over recent years both on the national and European level. However, the case law has not been consistent in all parts. For instance in France, we have seen national courts not always applying European precedent.

In Svensson, the CJEU stated that setting a hyperlink to a freely accessible website featuring copyright works does not constitute a communication to the public in the sense of Article 3(1) of the InfoSoc Directive 2001/29. The requirement of a “new public” being addressed is deemed to be missing because, by placing a work on an open website the author already communicates his work to the entire public of the Internet. A hyperlink thus does not form an additional exploitation of the copyright, particularly as hyperlinking does not involve any kind of reproduction of the work.

In BestWater International, the CJEU applied this rule to works embedded in a third party’s website by means of framing technology. Framing was seen as nothing else but a specific way of setting a hyperlink.

Both cases did not touch upon the question of lawfulness in the context of a missing consent in first place, i.e. a situation where the author had not approved his work to be put online. Consequently, a clear answer was awaited across Europe and the Hoge Raad of the Netherlands referred this issue to the CJEU. The court did so in a case where the hyperlink led to an Australian website which obviously featured unauthorized photos of a woman called Britt Dekker. In this context, the Dutch judges also inquired whether it makes a difference if the person setting the link is aware of the fact that the work was initially published without the rightholder’s consent.

The Advocate General published his opinion on 7th April 2016. He took the position that a hyperlink forms no “communication to the public” regardless of whether the linked content was uploaded with or without the rightholder’s permission (see our blog post).

Judgment

The judges in Luxembourg basically follow the Advocate General’s approach. They state that generally hyperlinking is not “communication to the public“. In this course, the CJEU emphasizes the importance of the Internet and particularly of hyperlinks as the method of connecting content and information. Reference is made to the freedom of expression and information as laid down in Article 11 of the Charter of Fundamental Rights of the European Union. Furthermore, the court reiterates that it is very difficult for an individual to ascertain whether the linked content has been published with or without the rightholder’s permission.

However, the CJEU does not stop here. The above principle finds a limitation in cases where the Internet user setting the hyperlink knows or should know that the work has been published without the rightholder´s consent. Under such condition, the hyperlinking does constitute a “communication to the public“. If the link is provided with the pursuit of financial gain it shall further be presumed that the person providing the link has or should have had such knowledge. According to the CJEU, it can be expected that persons who provide links for their financial gain ensure that the linked content has not been published illegally.

Comment

All in all, the new landmark decision resounds. It is consistent and therefore, after all, not surprising. However, what needs some reflection is the fact that the CJEU, in effect, creates two categories of hyperlinks, i.e. those that constitute a “communication to the public” and those that do not. Grounding this distinction on the subjective criterion of what the person setting the link knew or should have known is demanding in practice. In other words, courts will have difficulties in applying this guidance from the CJEU, particularly those which were already reluctant to apply the findings of its previous decisions. Also, rightholders will struggle to prove that the person who set the hyperlink knew or ought to have known. In a commercial environment, the shift in the burden of proof will help the rightholder. Still, it is yet to be proven that the principles now developed by the CJEU will led to balanced decisions.

As a side remark, the current decision will also influence the German case regarding BestWater International. Even though the CJEU rendered its decision quite some time ago, the case is still pending before the German courts. The German Bundesgerichtshof remitted the matter to the court of appeal requesting clarification on whether the linked content was published with or without the rightholder’s consent. According to GS Media, this question now indeed becomes of great importance. The court of appeal will now have to determine whether the defendants in the German case knew or should have known.