The Court of Justice's (the CJEU) recent ruling in GS Media BV v. Sanoma Media a.o. case (C-160-15) clarifies that posting a hyperlink to copyrighted material which is freely available on another website is an infringement of copyright.

This decision departs from the opinion of the Advocate General (AG) in June 2016. This case relates to a Dutch news website, GeenStijl, operated by GS Media (GS Media), which posted links to Playboy photographs of a Dutch TV presenter.

The photographs were hosted on various websites without the consent of the copyright holder. GS Media had ignored requests to take down links to the copyrighted material. The Appeal Court in the Netherlands sought a preliminary ruling from the CJEU on posting hyperlinks to copyright work.

The AG's opinion recommended that links to copyrighted material should not be considered a breach. The AG did not consider that hyperlinks to protected content, which could be accessed without restriction on a third party website, fulfilled the criteria of being a 'communication to the public' within the meaning of Article 3(1) of the Copyright Directive (Directive 2001/29EC). The hyperlink simply made access easier.

In considering the AG's recommendations, the CJEU decided that although linking when unaware of copyright infringement and in a not-for-profit context was acceptable, there should be a set of exceptions where a hyperlink could be considered a copyright breach in itself.

Firstly, if persons undertaking the hyperlinking knew, or should have known, that the copyright-protected work on the original website was published without consent of the copyright holder, the hyperlink itself also constituted copyright infringement.

In addition, the Court established that where persons posted hyperlinks for financial gain, they are presumed to be aware of the illegal nature of the publication on the original website and therefore are infringing copyright by hyperlinking to it. In the present case, the Court found that as it was undisputed that the copyright holder had not authorised the publication of the photographs on the internet, and that GS Media was aware of this fact. It could not rebut the presumption that the posting of the links was made in full knowledge of the illegal nature of that publication. In those circumstances, GS Media effected a 'communication to the public' within the Meaning of Article 3(1) of the Copyright Directive.

While the CJEU ruling recognised the importance of a free flow of information online for fundamental rights such as freedom of speech and expression, it also emphasised the need to maintain what it described as a 'fair balance' between the interests of copyright holders and the fundamental rights of users of protected objects. It is that balance that the ruling sought to achieve by creating a distinction between knowingly posting a link to copyrighted material and doing so unaware and with no intention of seeking financial gain.

The implications of the ruling are wide ranging and whilst will be welcomed by copyright owners seeking to protect their material, the ruling could have significant consequences for businesses, in particular search engines, who frequently post hyperlinks to content hosted by third parties.