In a further key decision on hyperlinking and copyright, the CJEU has held that creating hyperlinks may be a communication to the public and so may amount to copyright infringement, if the creator of the hyperlinks knows or should have known that the material to which they are linking has been posted without the copyright owner's consent. Further, if hyperlinks are created for financial gain there is a greater duty to check that the material is freely available before creating the link.
Previously (Svensson, Case C-466/12) the CJEU held that creating hyperlinks was not an infringement of copyright as it did not amount to a communication to the public of the underlying copyright material, as long as any restrictions on the original material, such as a pay wall or website terms and conditions, were not circumvented. However, that case concerned material which had been posted with the copyright owner's consent. The CJEU has now looked at Case C-160/15 GS Media v Sanoma Media where the underlying material was posted to the internet without the copyright owner's consent. The Court concluded that hyperlinks to such material can be a communication to the public and so may amount to copyright infringement. The key factors are:
- Knowledge of the person creating the hyperlink. Hyperlinks created by anyone who knows or ought to know that the material to which they are linking has not been posted with the copyright owner's consent can be copyright infringement. This will be the case even if the material is not behind a paywall or restricted in any way on the original website.
- Whether there is financial gain in posting the hyperlink. Where hyperlinks are created for financial gain, the creator of the hyperlink is under a higher burden to check whether the material to which they are linking has been posted with the copyright owner's consent. The CJEU found that there will be a presumption of an expectation of checks. However, no indication was given as to when that presumption may be rebutted.
- The decision will give greater power to those seeking to prevent links to their material when it has appeared on the internet without their consent. This will include collecting societies who administer rights enforcement for their members.
- Until there is further clarity from the CJEU, commercial organisations should review their procedures and policies to ensure that where hyperlinks are created sufficient checks are undertaken to ascertain whether the material to be linked to has been posted with the consent of the owner.
The case was a referral from the Dutch court where proceedings were taken by Sanoma Media, Playboy Enterprises and Ms Dekker against GS Media to prevent it from posting links on its website to other websites where photos of Ms Dekker were available. The photos had been taken for Playboy and leaked, appearing on the internet without authorisation. GS Media operates a popular news based/celebrity website in the Netherlands. GS Media did not post the photos themselves but created hyperlinks to a website in Australia on which they could be found, enabling those visiting their website to locate them more easily. Despite receiving a request from Sanoma Media to remove the links, GS Media posted further articles containing links to both the original website and other websites which carried the photos. Sanoma brought proceedings against GS Media for infringement of copyright through posting the hyperlink to the photographs.
Questions for the CJEU
The CJEU were asked to confirm whether creating a hyperlink amounts to a communication to the public under Article 3(1) of the Copyright Directive (2001/29) in circumstances where the material in question had not been posted with the copyright owner's consent. The right to communicate a work to the public is a right protected by copyright for the copyright owner. The Dutch referring court considered that the circumstances in the case before it were sufficiently different to Svensson, where the material which was the subject of a hyperlink had been posted without any restriction by the copyright owner.
The Relevant Criteria
The CJEU took the opportunity to revisit and refine the case law created in Svensson. Whether there had been a communication to the public requires individual assessment, with reference to several interdependent criteria. The CJEU stressed the following criteria:
- The action of the user (person creating the hyperlink) and whether their actions were a deliberate intervention in full knowledge of the consequences and were significant in allowing the public access to a work that they would, by and large, not otherwise see.
- Communication to the public requires communication to a fairly large number of people and must be a "new" public, being one that was not taken into account when the material was originally made available by the copyright owner.
- It is relevant whether the communication to the public is of a profit- making nature.
The CJEU immediately distinguished Svensson because on the facts, the material to which the hyperlink related had been posted with the copyright owner's consent. In that case, the CJEU considered that once a copyright owner had made material freely available on the internet, it had to mean that it had made it available to all internet users. The position where the copyright owner had not consented to the initial posting on the internet is clearly different.
Whilst the court recognised the difficulty for individuals creating hyperlinks of knowing or ascertaining whether material had been posted with or without the consent of the owner, it concluded that this was limited to those who were not pursing a profit in creating the hyperlinks. In those circumstances, the CJEU held that as a general rule, the individual creating the hyperlink does not intervene, knowing the consequences of giving access to the material (which was posted without the consent of the copyright owner).
However, where someone creating a link was aware that the copyright material had not been posted with consent of the owner, then those people were making a conscious intervention and were making a communication to the public. The CJEU likened this to the circumstances discussed in Svensson where a pay wall or website terms and conditions are circumvented.
The CJEU went on however to say that where posting of hyperlinks is for profit, "it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published" so that it should be presumed that the posting is carried out with the knowledge of what is being done. The CJEU held that this would then amount to a deliberate communication to the public. The CJEU did however note that this presumption was rebuttable, but did not expand on how it may be rebutted.
On the facts before it, the CJEU, not surprisingly given the subject- matter, had no problem finding that there had been a deliberate communication to the public in circumstances where the photos had not previously been made available on the internet with Sanoma's consent and GS Media had continued linking to them, even after they had been notified of Sanoma's rights in the photos.