By the decision of 8 September 2016 (case C-160/15), the European Court of Justice (ECJ) ruled on a reference for a preliminary ruling by the Dutch Supreme Court, with which the latter requested it to assess whether posting hyperlinks giving access to protected works published online without the authorisation of the copyright holder infringed the latter’s right to communicate the work to the public under Article 3(1) of Directive 2001/29/EC, the interpretation of which we already discussed here on this blog, although with regard to different problems.

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The plaintiffs in the main proceedings were Playboy Enterprises International Inc., owner of the famous homonymous magazine, Sanoma Media Netherlands BV, the publishing company of the latter, and a well-known Dutch presenter. Some websites had published unauthorised photographs of the presenter, whose copyrights were owned by the publisher Sanoma. A Dutch news website, owned by GS Media BV, had made available some hyperlinks to the abovementioned websites. After having unsuccessfully requested it to remove them, Sanoma sued GS Media for copyright infringement before the Amsterdam District Court.

The lawsuit at first was successful, but the Court of Appeal reformed in part the first instance decision on the grounds that GS Media did not infringe any copyrights on photographs, although acting unlawfully against Sanoma. Both the parties appealed before the Dutch Supreme Court; Sanoma, in particular, observed, inter alia, that GS Media had put in place a communication to the public under Directive 2001/29/EC, having posted links to protected works unlawfully published on other websites. In support of its position it recalled a contrario an earlier ECJ ruling (case C-466/12), essentially excluding that posting links to protected works constitute a communication to the public when the linked works are online with the consent of the copyright holder. The Supreme Court decided to request a new ruling from the ECJ on the interpretation of article 3 of Directive 2001/29/EC, in order to comment on the dispute in the main proceedings.

The Judges found that in order to assess the existence of a communication to the public, in addition to the two essential criteria of the act of communication of a work and of a public to which such act is addressed, other interdependent criteria have to be considered: i.e. a) the deliberate nature of the communication; b) the fact that the public refers to a fairly large number of potential viewers and that it is new, not having been taken into account by the copyright holders when they authorised the initial communication to the public of their works; and c) the profit-making nature of the communication.

The ECJ also reminded that – as stated by the ruling recalled by Sanoma – making links available to protected works published on other websites without the consent of the copyright holder does not constitute a communication to the public under Directive 2001/29/EC, given that the linked works would be accessible on the Internet anyway – the same technical means used by the initial communication to the public – although on different websites. This is true except in the event that such links allow a new public to reach the works published on other websites: in this case, in fact, making such links available would be an independent communication to the public, despite using the same technical means.

The abovementioned principle – the Judges specified – is not applicable when such links lead to protected works freely available on other websites without the consent of copyright holders. However, this case cannot be considered, as a matter of principle, a communication to the public, since a similar assumption would have highly restrictive consequences for the users’ freedom of expression and of information; this, without considering that it may be difficult for individuals who wish to post such links to ascertain whether the linked contents are protected works as well as, in the case they were, whether the copyright holders of the latter had consented to their being posted on the Internet.

Thus, according to the ECJ, the case in which such links are posted by individuals must be distinguished from the case in which they are posted by users acting for profits. In the first case, in fact, there will be a communication to the public only when: a) the individual who posted such links knew or ought to have known that the linked works have been illegally placed on the Internet (for example owing to the fact that he/she was notified thereof by the copyright holders) or b) such links “allow users of the website on which (they are) posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers”. In the second, instead, given that “it can be expected that the person who posted such link(s) (for profits) carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead” such posting constitute a communication to the public, because “it must be presumed that (it) has occurred with the full knowledge of the protected nature of that (linked) work and the possible lack of consent to publication on the Internet by the copyright holder”.

In the end, the ECJ, in application of those principles, stated that in the main proceedings case GS Media’s posting constitutes a communication to the public: in fact, it is undisputed that GS Media acted for profit, that Sanoma did not give its consent to the publication of the photographs at issue on the Internet and that GS Media was aware of this, given the warnings sent by Sanoma.