In recent weeks, Advocate General Wathelet (“AG”) – an independent advisor to the Court of Justice of the European Union (“CJEU”) – delivered his Opinion in GS Media v Sanoma [1] The Opinion is significant as the AG found that posting a hyperlink to content on another website, which was made available without authorisation, is not in itself copyright infringement. The AG found this to be the case even where the hyperlink provider knew, or should have known, that the material hosted on the linked website was infringing copyright.

Questions to the CJEU

Sanoma, publisher of Playboy magazine, commissioned a photo-shoot of Dutch celebrity Britt Dekker. The photographs were leaked before Playboy’s monthly issue was published and appeared on an Australian file-hosting website. GS Media, through its website Geenstijl, advertised hyperlinks that brought its users to the Australian website hosting the leaked images.

Despite receiving demands from Sanoma, GS Media refused to remove the hyperlinks. The Australian website complied with Sanoma’s request to take down the images, but GS Media made further links available to another website hosting the images. Sanoma brought an action against GS Media claiming that the hyperlinks had infringed copyright.

The case was appealed up to the Supreme Court of the Netherlands, which requested a preliminary ruling from the CJEU concerning the interpretation of Article 3(1) of Directive 2001/29/EC (the “Copyright Directive”). In summary, the Dutch court asked the CJEU to confirm:

  1. Whether providing a hyperlink to another website, which contains copyright-infringing material that is accessible to the general internet public, constitutes an act of “communication to the public”.
  2. Whether it matters if the hyperlink provider knew, or should have known, that the material on the linked website had been published without the authorisation of the copyright owner.
  3. If it is relevant that the hyperlink provider is facilitating access to the relevant copyright works.

Communication to the Public

The Copyright Directive does not contain a definition of “communication to the public”. However, CJEU case law provides that the concept includes (i) an “act of communication” of a work and (ii) the communication of that work to a “public”. The AG examined these two criteria.

Not an Act of Communication

On the first point, the AG stated that, in a broad sense, communication to the public includes the act of “making available to the public”. Past case law has limited this concept to either a transmission or retransmission. This, according to the AG, would not be satisfied by hyperlinks.

The AG turned to consider whether a hyperlink might even be considered an “act of communication”. He decided that hyperlink providers are not “making available” those works to a public because the works are already freely accessible from the linked site. Hyperlinks only serve to facilitate the works’ discovery and therefore cannot be classified as an “act of communication”. The AG explained that, in order to establish an act of communication, the ‘hyperlinker’ must be vital or indispensable to others benefiting from or enjoying the works. Here, it was found that the hyperlinker – GS Media – was not indispensable to the making available of the photographs to internet users. In addition, given that the AG found there was not an “act of communication”, he decided that it was not relevant whether GS Media was aware, or should have been aware, of Sanoma’s lack of authorisation.

A ‘Public’?

Moving to the second point, the AG examined the communication of the work to “a public”. Although expressing that these hyperlinks were certainly aimed “at a public”, the AG considered that the works had not been directed “at a new public”. This specifically turned on the fact that this limb to the test requires that the copyright holder has authorised the initial communication to the public, which had not occurred here.

The AG noted, however, that it was not clear to him whether the works were freely accessible to the general internet public via the third party websites. Given this issue, which arose from the lack of clarity between the various documents submitted, the AG left this factual question to be resolved by the Dutch court. The AG highlighted that GS Media could still be found to be indispensible if the hyperlinks allowed users to “circumvent restrictions” on the linked site.

What Does This Mean?

It is important to recall that the AG is an independent, yet influential adviser to the CJEU. While an AG’s Opinion is not strictly binding, it is common for the CJEU to follow AGs’ Opinions. Given this, it is possible that the CJEU will decide this case in a similar manner.

To the extent that the CJEU follows the AG, the current takeaway from the case is that posting a hyperlink to another website, where copyright works are freely accessible to the public without authorisation, does not constitute an act of communication to the public. According to the AG, if there was a legal risk every time an internet user posts a link, the effects “would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society”.

Remedies Available to the Copyright Owner

Right holders still have alternative remedies. In particular, they can bring an infringement claim against the individual who made the initial communication without their authorisation. They can also apply for an injunction against the website operators who initially uploaded the material and the website operators may also be liable under national law.