A recent Playboy spread featuring a Dutch reality TV star has not only made the hearts of Playboy-readers beat faster, it has also piqued the interest of European copyright professionals.
A piquant history
In October 2011, the Dutch reality TV star Britt Dekker was photographed for the December edition of the Dutch edition of Playboy. Shortly after the photo shoot, a hyperlink to the photographs was leaked to the popular website Geen Stijl, the enfant terrible of Dutch media. Geen Stijl published an article about the photographs and included a hyperlink to the image in the article.
Sanoma, the publishing house of Playboy, bought an action against GS Media, the owner of GeenStijl, to delete the hyperlink, but without success. After the case was brought before the Dutch district court, and then on appeal to the Court of Appeal, GS Media was ordered to pay damages and legal costs.
GS Media sought to appeal the judgements and appealed to the Netherlands' Supreme Court. The Supreme Court referred a preliminary question to the Court of Justice of the European Union (CJEU) in order to seek clarification on how article 3 of the InfoSoc Directive should be interpreted.
The CJEU's Advocate General Wathelet gave his opinion in April this year, questioning whether hyperlinking infringed copyright laws. Wathelet argued that when someone hyperlinks to work that is protected by copyright and that is published without the permission of its author, the copyright is infringed by the party that publishes the copyrighted work on the internet, and not by the party that links to the publication.
CJEU case law suggests otherwise
However, in its recent judgement in GS Media v Sanoma, the CJEU did not accept the straightforward approach of the Advocate General, choosing a more casuistic approach; in other words, the CJEU based its judgement on the circumstances of the case. The CJEU found that when the hyperlinker knows (or should know) that the hyperlink provides access to illegal content and/or the hyperlink is posted with the pursuit of financial gain – as was the case with GS Media – placement of the hyperlink can be regarded as a ‘communication to the public’ in breach of copyright law.