On 8 September, the Court of Justice (“CJEU”) in the GS Media BV v. Sanoma Media a.o. case (C-160-15), within the framework of a preliminary ruling requested by the Supreme Court of the Netherlands, held that GS Media, by posting hyperlinks that give access to copyright-protected work which is freely accessible on another website without the consent of the right holder, and knowing that the hyperlinks were published without the consent of the right holder, made a communication to the public in the sense of article 3(1) of the Information Society Directive 2001/29/EC.
The Court decided that if persons hyperlinking know or must have known that the copyright-protected work on the original website was published without the consent of the copyright holder, the hyperlink itself also constitutes a copyright infringement. Remarkably, the Court also goes a step further as it established a rebuttable presumption “against” persons posting hyperlinks while pursuing financial gain. They are presumed to be aware of the illegal nature of the publication on the original website and therefore they infringe copyright law by hyperlinking to it.
The facts underlying this case were the following: several articles containing hyperlinks to other websites on which nude photographs of “Ms Dekker” were made available (with one article even containing a cut-out of one of these photographs) were published during 2011 on the “geenstijl” website, which is operated by GS Media. The copyrights in these pictures had been transferred from the photographer to Sanoma. Sanoma was thereby granted the exclusive right to publish these photographs. Sanoma had, however, not consented to the publication of these photos on websites. Despite numerous attempts by Sanoma to persuade GS Media’s parent company to remove the hyperlinks, its requests were ignored. Sanoma also put on notice the websites to which the hyperlinks linked, and those websites removed the photos.
This judgment of the CJEU could have far-reaching consequences, as it places a high burden of proof on companies posting hyperlinks on their sponsored websites (having to rebut the presumption).