This autumn, the Court of Justice of the EU delivered a judgment addressing the permissibility of hyperlinks directing to copyrighted materials on the Internet. The judgment has been a significant contribution to the clarification of the use of hyperlinks. Those adding hyperlinks to their websites to generate profit must now be more careful about where and what they refer to.

In the case of GS Media (C-160/15), the Court of Justice of the EU ("CJEU") addressed the issue of whether or not the use of a hyperlink that refers to an unlawfully published copyrighted work is an infringement of the copyright holder's rights to the work.

The matter at hand was related to the posting of a hyperlink on a website operated by GS Media. The hyperlink referred to an Australian website showing nude photographs of Dutch model Britt Dekker taken for Playboy magazine. This was met with objections from Sanoma, as the publisher of Playboy in the Netherlands. Sanoma asserted that the photographs were uploaded to the Australian website without its prior consent, and hence the posting of the hyperlink leading to the unlawfully published photos had to be considered unlawful. However, GS Media continued to use hyperlinks to refer to other websites on which the photos of the naked model were published. As a result, GS Media ran out of patience and brought action against Sanoma with the Amsterdam District Court. The entire case ended up before the CJEU, which was to decide whether the use of a hyperlink leading to an unlawfully published work of authorship (photographs) could be considered communication to the public, and hence an act not permissible without the consent of the copyright holder.

Judgment of the CJEU

As we informed you in detail in our July newsletter, in April 2016, the Advocate General published its opinion on the GS Media case in proceedings before the CJEU. He concluded that in the case at hand, placing hyperlinks on a web page to another web page containing copyrighted works freely available to the public without the author's consent is not communication to the public, and hence not a copyright infringement. In the end, the CJEU decided to significantly deviate from this conclusion, and has only partially adopted the Advocate General's opinion.

When considering the matter, the CJEU relied on the statement that all posting of hyperlinks to works unlawfully published on other websites cannot be automatically categorised as `communication to the public', because this would have highly restrictive consequences for freedom of expression and of information, and would not be consistent with the right balance between that freedom and the public interest on the one hand, and the interests of copyright holders in an effective protection of their intellectual property on the other. In that context, the CJEU has noted that the Internet is in fact of particular importance to freedom of expression and of information, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information. In ruling on the matter, the CJEU made every effort not to harm the operation of the Internet. In light of the above considerations, the CJEU has divided the issues of the posting of hyperlinks into two basic situations, to wit, whether or not the posting of hyperlinks is carried out for profit.

The first instance includes situations when the posting of hyperlinks to copyrighted works published without the author's consent is not carried out for profit. In this case, the CJEU has agreed the conclusion of the Advocate General to the effect that it is not communication to the public, and hence, does not constitute copyright infringement. This is due to the fact that the person posting the hyperlink does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give users access to a work illegally posted on the Internet. However, if it is proved that the person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the Internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a `communication to the public', and hence a copyright infringement.

The other instance includes situations when a hyperlink is posted on a website for making profit. In respect of such cases, the CJEU has inferred that even if the person posting the hyperlink did not know of the illegal nature of the publication of the work to which the hyperlink refers, such knowledge must be presumed. In the opinion of the CJEU, it can be expected that a person who posts a hyperlink for the purpose of pursuing profit should find out all information in advance suggesting that the copyrighted work was published illegally. If the above presumption of knowledge about the illegal nature of a copyrighted work is not rebutted, the posting of hyperlinks to unlawfully published works constitutes communication to the public, and hence an infringement of copyright to such works.

The CJEU concluded its judgement by stating that GS Media provided the hyperlinks to the files containing the photos at issue, hosted on the Filefactory website, for profit. According to the CJEU, it is also undisputed that the publisher of Playboy magazine had not authorised the publication of those photos on the Internet. Moreover, it appears to follow from the presentation of the facts that GS Media was aware of that latter fact, and that it cannot, therefore, rebut the presumption that the posting of those links occurred in the full knowledge of the illegal nature of that publication.

In the above conclusions, the CJEU has significantly deviated from the conclusions of the Advocate General. At the same time, it followed its previous judgments in the cases of Svensson (C466/12) and BestWater (C348/13), and contributed to the clarification of conditions for assessment whether the term `communication to public' includes the posting of hyperlinks to copyrighted works that were already freely available on another website without the consent of the copyright holder.

First applications of the judgment

Although it has only been several weeks since the ground-breaking judgment of the CJEU in the GS Media case was delivered, the conclusions reached by the CJEU have already been applied. One of the first instances of the application was made by a Swedish district court. The court was considering a case brought by a claimant in connection with a video showing her bungee jumping session gone wrong. The video had been uploaded onto YouTube without the permission of the copyright owner/claimant, and then used by L'Avenir as a video accompanying an Internet article. The author of the video brought an action against L'Avenir for an infringement of her copyright by publishing the video on its website without her consent. L'Avenir defended itself by stating that it had taken the video from YouTube in good faith.

In considering the case, the Swedish district court relied on the latest judgment of the CJEU on GS Media. On this basis, the court automatically inferred that L'Avenir had obviously published the link to the claimant's YouTube video with the intention of pursuing a profit, without providing more detailed justification for this conclusion. According to the court, L'Avenir had infringed the claimant's copyright by linking to the YouTube video without the author's permission.

Potential practical impact

As is clear from the judgment in the GS Media case and the CJEU's related considerations, the CJEU tried not to exclude the possibility of an easy use of hyperlinks, and to not `break the Internet'. But did it succeed? And what the practical implications of the GS Media judgment will be?

The CJEU's judgment does not contain any detailed `instructions' as to the procedure for establishing whether or not a hyperlink is posted with the intention of achieving profit. In theory, the purpose of pursuing profit could be interpreted very broadly. It cannot be ruled out that, for example, the posting of a hyperlink on a private blog can be assessed as such, because the effort to increase the blog's website traffic may be considered the pursuit of profit.

Although the CJEU admitted in its judgment that the Internet is a very important tool for freedom of expression and dissemination of information and that hyperlinks even contribute to its sound operation, we cannot say that the CJEU managed to steer absolutely clear of any adverse impacts on Internet operation. Given that the posting of hyperlinks to unlawfully published works of authorship for the purpose of pursuing profit is considered communication to the public, those who post hyperlinks on their websites are subject to increased demands, and each use of a hyperlink must involve a check whether the hyperlink directs to an unlawfully published copyright work. In addition, the range of cases when such verification must be carried out grows even wider due to the fact that the purpose of pursuing a profit can be understood quite broadly.

On the one hand, the judgment in the GS Media case, in connection with the previous judgments delivered by the CJEU, has clarified and contributed to establishment of conditions for the use of hyperlinks. On the other hand, it has increased the demands for verification upon those who post hyperlinks on their websites.