We have previously reported here on this Dutch Supreme Court's reference (C-160/15) to Europe's highest court but in a nutshell, in this dispute between GS Media and Sanoma, the Dutch Supreme Court has asked the CJEU whether it is a copyright infringement, under Article 3(1) of the InfoSoc Directive, to hyperlink to a third party website, which is freely accessible, but has placed material online without the consent of the copyright owner.

Advocate General Wathelet delivered his Opinion last Thursday 7 April stating that posting a hyperlink to a website which published photos without authorisation, does not in itself constitute copyright infringement.

Re-cap of the law

Article 3(1) of the InfoSoc Directive (2001/29/EC) requires EU member states to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

As there is no specific definition of 'communication to the public', settled European case law has stated that the concept includes two cumulative criteria:

i. An ‘act of communication’ of a work – i.e. a work must be transmitted/made available to the public in such a way that they can access it, even if they choose not to; and

ii. The communication of that work to a ‘public’ – public being an indeterminate number of potential recipients and implies a fairly large number.

In addition, to benefit from protection, it is settled law that where there is a communication which does not use a different technical means to that of the original communication, the act of communication must be directed at a new public – i.e. at a public that was not taken into account by the copyright holders at the time the initial communication was authorised.

Re-cap of the facts

In October 2011, GS Media, which operates the Dutch entertainment website GeenStijl.nl (which translates as 'no class' or no style'!) published an article about leaked nude photos of Dutch model/TV presenter, Britt Dekker, taken for the December edition of Playboy. The article contained a hyperlink to photos hosted by Australian file sharing website FileFactory.com. The article also featured part of one of the photos (the 'cutout') in the top left hand corner. At the request of Sanoma (the Playboy publisher), Filefactory.com removed the file but GeenStijl.nl continued to link to another website called Imageshack.us where the unauthorised photos were accessible. Imageshack.us also complied with Sanoma's request to take the photos down. However, new hyperlinks leading to the authorised photos continued to appear on GeenStijl's website. Sanoma successfully sued GeenStijl.nl in the Dutch court for copyright infringement but the decision was appealed and the Dutch Supreme Court then asked the CJEU for further guidance on linking to unauthorised content.

The photos featuring on Filefactory.com, and Imageshack.us without Sanoma's consent and the cutout photograph on GeenStijl's website were not in issue at CJEU level – just the hyperlinks on the GeenStijl website.

The 3 main questions referred to the CJEU were:

  • Is it an act of communication to the public to provide a hyperlink to a third party website, which is accessible to the general internet public, and on which copyright protected works are made available to the public without authorisation from the copyright holder? And does it matter whether the person who posts the hyperlink is or ought to be aware of the lack of authorisation by the copyright holder for the initial communication?
  • Does it matter if the hyperlink greatly facilitates access to the protected works and in that context, is it important whether the 'hyperlinker' is or ought to be aware that the website to which the hyperlink refers cannot be easily found by the general internet public?
  • Are there any other circumstances that should be taken into account when considering whether hyperlinking to unauthorised content is a 'communication to the public'?

Previous relevant rulings

The dispute in this case comes in the wake of the judgment in Svensson in February 2014 (C-466/12) and the order in BestWater in October 2014 (C-348/13). In Svensson the CJEU determined that a 'communication to the public' requires both a 'communication' and also a 'public'. The provision of hyperlinks in that case was determined to be 'making available' and was therefore 'an act of communication'. However, the CJEU held that a 'public' must be a 'new public'. In other words, the communication must be 'directed at a new public… at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public' (this point was already settled case law following the CJEU's ruling in ITV Broadcasting). In the circumstances of Svensson, the public targeted by the journalists' original articles consisted of all potential visitors to the Göteborgs-Posten (newspaper) website which was unrestricted and could therefore be viewed freely by any Internet user. Consequently, the links provided were not to a 'new public' and there was no need to obtain the authors' consent.

In Bestwater, the CJEU held that embedding content from another website also would not constitute a "communication to the public" if the original uploader did not restrict access to the content and communicated to the whole Internet community.

Even though these rulings touched on related points, the Dutch Supreme Court claimed that 'it could not be inferred with sufficient clarity' from these cases, whether there is a communication to the public if the work has been previously published, but without the copyright owner's consent. The CJEU considered this to be an opportunity to determine this point and re-examine the 'communication to the public' criteria under Article 3(1).

Advocate General's opinion

Having considered various observations made by interested parties such as the Federal Republic of Germany, the Portuguese Republic, the French Republic, the Slovak Republic and the European Commission, AG Wathelet concluded that:

In relation to the 'act of communication':

  • Although hyperlinks posted on a website make it much easier to find other websites and protected works available on those websites and therefore allow users of the first site quicker, direct access to those works, hyperlinks which lead, even directly, to protected works do not ‘make available’ those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works. The AG agreed with the Portuguese Republic that the act which constitutes the actual ‘making available’ was the action by the person who effected the initial communication.
  • In order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy the works. The AG referred to the case in Football Association Premier League and Others (C-403/08 and C-429/08) where the owner of a pub intentionally gave his customers access to a copyright-protected broadcast, without which access, they would not have been able to enjoy the broadcast works. He considered that it had to follow that hyperlinks posted on a website which direct to copyright-protected works freely accessible on another website cannot be classified as an ‘act of communication’ because the intervention of the website operator which posts the hyperlink, in this case GS Media, is not vital or necessary to enable users to access the Playboy photographs, including those who visit the GeenStijl website. It is also not sufficient that the hyperlink facilitates or simplifies users’ access to the work in question.
  • Even though GS Media was aware that the photographs on Filefactory.com and Imageshack.us had been leaked but had still provided hyperlinks on the GeenStijl website 'in flagrant violation of the rights of the author of those works', because there was no act of communication, GS Media’s motives and the fact that it was or ought to have been aware that the initial communication of those photographs on the other websites had not been authorised by Sanoma were irrelevant.

In relation to communication of that work to a 'public':

  • The second criterion of a 'new public' as required in Svensson was only applicable where the copyright holder had authorised the initial communication to the public, but there was no such initial authorisation in this case.
  • Even if the CJEU was to rule that this criterion was applicable where the copyright holder had not authorised the initial communication to the public, it was clear from Svensson that it was satisfied only if the intervention in the form of the publication of hyperlinks by the website operator was indispensable to the works being made available to a new public. If the photographs were freely available to the general internet public on other websites, such intervention by GS Media was not vital to the works being made available. There would not therefore be a "new public" and the question of the authorisation of the initial communication by the copyright holder would not arise.

Were the photos actually freely accessible?

An interesting point raised by the AG was that his conclusions had been based on the premise that the photographs were freely accessible to the general internet public, but that fact was not 100% clear from the contradictory papers before the Court. On the one hand, the papers indicated that there were access restrictions on the third party websites, but on the other, they indicated the hyperlinks simply facilitated access to a certain degree. It will be interesting to see how the Dutch Supreme Court resolves this point but whatever the facts, the reasoning in Svensson makes it clear that if the hyperlinks did allow users to circumvent any restrictions, the hyperlink would then be considered an indispensable intervention without which the internet users would not be able to enjoy the photos, and therefore a communication to the public.

What other circumstances should be taken into account?

The AG said that aside from the fact that, in principle, the posting of the hyperlinks in the main proceedings did not, in his view, constitute a ‘communication to the public’, he considered that any other interpretation of that provision would significantly impair the functioning of the Internet and undermine one of the main objectives of the InfoSoc Directive, which was the development of the information society in Europe. He went on to say that 'the posting of hyperlinks by users is both systematic and necessary for the current internet architecture'.

Even though the circumstances in this case were obvious (i.e. that the nude photos had been leaked), the AG rightly commented that as a general rule, internet users are not aware and do not have the means to check whether the initial communication to the public of a protected work freely accessible on the internet was authorised by the rightsholder or not. If users were at risk of infringing copyright whenever they posted a hyperlink to works freely accessible on another website, they would be far more hesitant to post them and in the AG's opinion, that would be detrimental to the 'proper functioning and the very architecture of the internet, and to the development of the information society'.

Remedies available to the copyright holder

Even though the AG's opinion was that GS Media had not infringed by posting hyperlinks to unauthorised content, he went on to suggest alternative remedies to copyright holders:

  • They could bring an infringement claim against the original person who effected the initial communication to the public without their authorisation, (although such action was not possible in this case because that person was unknown).
  • Under Article 8(3) of the InfoSoc Directive and Article 11 of the Enforcement Directive, they could apply for an injunction against intermediaries, such as, in this case, the website operators Filefactory.com and Imageshack.us.
  • Those website operators may also be liable under national law for storing information provided by users of their sites on their servers. Although the E-Commerce Directive provides various safe harbours to restrict intermediaries' liability under national law (i.e. where they are truly providing only a technical, automatic and passive service), those exemptions are subject to strict conditions and they will not escape liability if they have actual knowledge of illegal activity or information and if they do become aware, they fail to act quickly to remove, or disable access to that information. The AG highlighted that in this case, Filefactory.com and Inageshack.us had removed the photographs and so any hyperlinks on the GeenStijl website to those websites were ineffective.

Comment

This next instalment in the long line of 'communication to the public' cases has been long-awaited (surprisingly this is the first time the CJEU has sought an AG Opinion on linking under Article 3(1)) and it has certainly divided public opinion. While some consider this the right decision in terms of allowing the internet to function as it should, if the CJEU follows this Opinion (and statistics indicate that it does in 80% of cases), rightsholders could have a more difficult time protecting their copyright-protected content online.

On the one hand, it seems sound reasoning that linking to content, whether it is authorised by the copyright owner or not, should not, in itself, constitute copyright infringement. If that was not the case, then any hyperlinker who innocently or inadvertently linked to unauthorised content would become liable for copyright infringement. That could potentially have a detrimental effect on the efficient functioning of the internet as internet users would be more hesitant to link to content, for fear of infringing, even if it was, in actual fact, perfectly legitimate to link to that content.

On the other hand, it seems unjust that those who intentionally link to unauthorised content and make a business from such activities cannot be pursued for infringement under Article 3(1). While the AG Opinion did offer alternative options for protecting copyright, such as seeking an injunction against the website operator (and similarly there is the option to seek an ISP blocking order), some might argue that this has already been tried and tested and in many instances, has proved to be ineffective. No sooner has one website been taken down, than another website containing unauthorised content rears its ugly head (as was the case here). It is also not necessarily practical to pursue the person who effected the initial communication because they are often hard to locate.

So while in some respects it seems correct not to extend the concept of communication to the public to cover hyperlinks to freely accessible unauthorised content, should there perhaps be some kind of carve out for flagrant abusers?

It is also interesting to note that while in Svensson, the provision of a hyperlink was determined to be 'making available' and was therefore 'an act of communication', the AG's view in this case was that hyperlinks leading to protected works do not 'make available' works which are already freely accessible on another website, they simply facilitate the finding of those works.

Watch this space for the final CJEU ruling when it comes out to see whether the judges agree with the AG Opinion……