On Sept. 8, the European Court of Justice (ECJ) held that posting a hyperlink to works protected by copyright and published without the author’s consent on another website does not constitute a copyright-infringing “communication to the public” as long as the person posting the link does not seek financial gain, and does not know that the works were published illegally.
In the underlying case before the Supreme Court of the Netherlands, the publisher of "Playboy" magazine sued the provider of a Dutch blog for publishing links to an Australian website where photos yet to be published in "Playboy" were available without authorisation. The ECJ emphasized that the internet is of particular importance to freedom of expression and freedom of information, and that links contribute to the sound operation of the internet. Also, the Court conceded that it may be difficult for individuals to ascertain whether the website to which the links would lead provides access to protected works, and whether the copyright holders of those works have consented to their posting on the internet. Therefore, the Court held that users who do not pursue a profit when posting links to third-party content cannot be reasonably expected to know or examine whether this content was first published without authorisation. However, this rule does not apply if knowledge of illegality is established (e.g., due to a notification by the rights holder), or if the posted link allows users to circumvent measures taken by the website where the work was originally posted to restrict public access, e.g., to subscribers. Also, when links are posted for profit, it may be expected that the poster carries out the checks necessary to ensure that the work concerned is not illegally published. Therefore, the Court held that knowledge of the illegality of the publication is generally presumed if someone posts a link for profit, and, unless the presumption is rebutted, such postings – as the links in question in the underlying case – are therefore deemed “communications to the public”.