On 18 November 2016, the Hamburg Regional Court issued the first German court decision to expressly confirm the principles of the European Court of Justice’s (“ECJ”) GS Media ruling regarding liability for posters of hyperlinks. As a result, operators of commercial websites who post hyperlinks in Germany are obligated to carry out the necessary checks to ensure that the relevant work (e.g., photos, text) to which they link was published with the necessary authorisation and does not infringe other rights.
GS Media requirements
Under the GS Media ruling, communication of a work to the public, within the meaning of Art. 3 (1) of the InfoSoc Directive, can be deemed to exist where a protected work is communicated using new technical means or to a new public audience. According to the ECJ, a new public is reached if the copyright owner had not also considered this public when permitting the original communication to the public.
In addition, the ECJ used a subjective criterion to limit the liability for linking; liability will exist only if the linker "knew or ought to have known" that the hyperlink he had posted provided illegal access to content. If the linker acted in pursuit of financial gain, it is presumed that he acted with full knowledge that the communication to the public was unlawful. In other words, parties who post hyperlinks in pursuit of financial gain are expected to carry out the necessary checks to ensure that the work concerned was not published on the linked site without authorisation.
The Hamburg case
In the case before the Hamburg Regional Court, a website operator posted a link to another website which showed a photo that had been published and altered without the photographer's consent.
According to the judge, in linking to the site on which the unauthorised adaptation of the photo was shown, the linker made the work available to a new audience and in doing so required the consent of the copyright owner under the ECJ’s GS Media ruling.
The Hamburg Regional Court then addressed whether it would be presumed that the linker knew or ought to have known that posting the link was unlawful. In resolving this issue, the court had to address the meaning of “the pursuit of financial gain”. The court concluded that it would suffice if the link were posted within the framework of a website that – as a whole – includes the pursuit of financial gain. It is sufficient for this that a website operator offers non-gratuitous services on his website.
In the opinion of the Hamburg Regional Court, the linker could not rebut the presumption of culpability based on his pursuit of financial gain. In fact, the photographer presented a letter from the linker in which he stated that he had not thought of the idea of asking the linked to site operator or carrying out any other checks concerning the background of the picture in terms of copyright law.
Requirements for a linker's duty to check remain unclear
In light of the linker’s clear lack of an attempt to verify the linked to content, the Hamburg Regional Court did not have the opportunity to address what requirements will be imposed on the duty of a linker to carry out a check.
Would the Hamburg Regional Court have expected the linker to carry out checks for each individual picture if multiple works were shown? Probably, which would involve a great deal of effort for those acting in pursuit of financial gain and might call entire business models into question, because the linker will be more likely to refrain from posting any links for fear of false legal assessments. This would undermine the actual goal of the European lawmakers, which is to increase the diversity of opinions in the internet.