The Court of Justice of the European Union (CJEU) on 8 September 2016 handed down its eagerly awaited decision in GS Media (GS Media v Sanoma Media Netherlands and Others (C-160/15)),seeking to clarify the legality of posting hyperlinks under EU copyright law. In GS Media, the CJEU expanded upon its reasoning in the widely reported Svensson decision (Svensson and others v Retriever Sverige AB, Case C 466/12, 13 February 2014) to conclude that in some instances, the mere linking to infringing content might itself be an infringing communication to the public.
In EU copyright law, the term "communication to the public" marks one of the boundaries between use that has a copyright law relevance (and where a permission of the right holder would be required) and such use which does not. The CJEU’s much reported hyperlinking precedent in Svensson had established that hyperlinking to copyrighted works which were already freely available online did not constitute a “communication to the public” since this did not address a “new public”. This view was echoed in BestWater (C-348/13), where this argument was held to be equally applicable to cases of framing and embedded video. What was left open after Svensson and BestWater was whether there was a communication to a (new) public when a copyrighted work was freely available online but had not been placed online with the consent of the rights owner - in other words, when the content linked to was itself infringing.
In its decision in GS Media, the CJEU has now decided that hyperlinking to a copyrighted work that had previously been published online without the copyright owner’s consent (here: leaked photos from a Playboy photo shoot of a Dutch celebrity) will not constitute a “communication to the public” of that work under Article 3(1) of the InfoSoc Directive, where the hyperlinker had no knowledge that the work was originally published illegally. The judges thereby added a novel subjective element to the definition of "communication to the public".
The CJEU also confirmed a second important requirement for "communication to the public": acting for financial gain, which it had also mentioned in its recent decision in Reha Training. In GS Media, the CJEU introduced a rebuttable presumption that the hyperlinker had knowledge of the illegality in circumstances where the hyperlinker posted the link for “financial gain”. Unfortunately, the court does not expand on what it sees as the scope of the financial gain, e.g., whether this only applies to direct or also to indirect profits. Nonetheless, the CJEU's underlying motive in this context appears to be to distinguish between the average Internet user - who may innocently link - and commercial actors. It will therefore be interesting to see how this guidance will be applied in practice.
While this case has driven a lot of comment and is clearly significant, its practical impact may be limited. The CJEU attempts to distinguish between the posting of links by ordinary Internet users and those who seek to profit from linking. However, the "for profit" criteria is vague and it is unclear how close any causal connection between links and profit has to be and how easily it will be to rebut the presumption of knowledge.
The newly introduced rebuttable presumption that hyperlinkers who post links to copyrighted works “for profit” had knowledge that the works were originally posted online without consent of the right holder, creates new and unexpected issues. Crucially, the CJEU leaves open how hyperlinkers may prove that they did not have the requisite knowledge and/or what checks they should be carrying out prior to posting.
Applying the criteria set out in GS Media, there will be a new act of communication to the public, once hyperlinkers have been put on notice that the content of their hyperlink is copyright infringing and then fail to remove the link. This may ultimately result in a parallel notice and take down regime for links similar to that operated by online platforms relying on the E-Commerce hosting defense. This will have the most implications for 'quasi commercial' actors, such as bloggers who monetize through ad networks, rather than the big players who already have in place well established notice and takedown regimes.
GS Media is also of importance since it, for the first time, expressly balances freedom of expression with intellectual property rights on the question of the subsistence of a copyright, rather than in respect of its enforcement.
Finally, GS Media confirms that Svensson applies only to a situation where a copyrighted work is linked to and made freely available with the consent of the rights holder. Unclear still is the scenario where freely available linked-to copy is unauthorized, but the rights holder has authorized a copy to be made freely available elsewhere on the Internet. The logic of Svensson is that in that situation the link cannot amount to a communication to the public. Some passages in the GS Media judgment suggest that this may still be the case and so this point may require further clarification from the CJEU in the future.
In conclusion, the GS Media decision probably raises more questions than it answers. It's practical impact remains to be seen.