In a decision of 19 March 2013, the Brussels Court of Appeal held that hyperlinking to an infringing video is not a criminal offence if malicious intent on the party who provided the hyperlink cannot be proven.

In the case at hand, the defendant embedded a video on www.garagetv.be by posting a hyperlink to “Fait d’hiver”, an Oscar-nominated short film, which had been uploaded on YouTube by a third party. In addition to posting this hyperlink, the defendant also added a banner via Google AdSense, by which he could earn 2 Eurocents per click on the banner.

At the hearing, both parties requested the Court to stay the proceedings and wait for the outcome of the Svensson-case (C-466/12) which is currently pending before the European Court of Justice (ECJ). In the Svensson-case, the ECJ is to determine whether hyperlinking is a “communication to the public” within the meaning of Article 3 (1) of Directive 2001/29/ EC on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive), and its answer could therefore be relevant to the current case.

However, the Brussels Court of Appeal considered that the outcome of the Svensson-case would only be relevant if the defendant had maliciously and fraudulently infringed the copyrighted work. Indeed, the Belgian Copyrights Act of 30 June 1994 stipulates that the infringement is sanctioned criminally if it had been done with malicious or fraudulent intent. The Court therefore took it upon itself to first determine whether the defendant had such intent.

The claimant argued that the defendant’s mere pursuit of profits or the presence of business motives was sufficient to conclude that there is the required intent on the part of the defendant. However, the Court rejected this argument by finding that the defendant did not exploit the film but only the banners. The mere fact that the Defendant placed banners did not prove that he had the malicious intent to hyperlink a film—or that he reasonably could have known that he was hyperlinking to a film—that had been placed on YouTube without the consent of the rightholder.

The Court considered that because the users of YouTube must confirm, by accepting YouTube’s terms of service, that they have the right to upload the content, and since YouTube allows its users to report any copyright infringement, the defendant is presumed to assume that the content to which he was hyperlinking had been lawfully uploaded on YouTube. The Court held that this is particularly the case here: the video had been uploaded more than a year ago before the defendant posted the YouTube hyperlink, and since the video had not been removed following a possible report on its copyright infringement, the Court concluded that the defendant had no malicious intent and therefore acquitted him.

The decision can be found on http://www.ie-forum.nl