Following the string of cases on hyperlinking the CJEU has dealt with in recent years, the court has emphatically confirmed in its judgment in GS Media v Sanoma & Ors that hyperlinking to works that have been made available on the Internet without the authorisation of the copyright owner can infringe copyright.
The CJEU held that there will be a “communication to the public” of a protected work if the user (or hyperlinker) posts a link to a copy of that work that was posted on the internet without the right holder’s authorisation, where:
- the hyperlinker knew or ought to have known that the hyperlink he or she posted was to a protected work unlawfully placed on the internet (which, for example, might be established by the right holder bringing this to the hyperlinker’s attention);
- the hyperlink is posted in pursuit of profit or financial gain – in this case, there is a (rebuttable) presumption that the hyperlinker will have posted the material in full knowledge of the protected nature of the works (i.e. the court assumes that the hyperlinker will have carried out the necessary checks surrounding the protected work); or
- where the hyperlink posted allows the public to access protected works on a website which otherwise is restricted to certain users (for example, hyperlinks which enable the public to circumvent paywalls on a website containing the protected works).
The three scenarios identified by the CJEU above are alternative and not cumulative – i.e. the pursuit of profit or financial gain will be irrelevant where there is actual or deemed knowledge that the content was posted unlawfully, or there is circumvention of protective measures.
The earlier case of Svensson, where the court found on the facts that there was no communication to the public, seemed clearly limited to the situation where the rights holders had authorised the work to be made freely available on the internet (as we reported here). However, following that case and the subsequent order in the Bestwater case (reported here), some commentators had argued that there should never be communication to the public as a result of linking to freely available material, even where there was no authorisation for the original posting of the material.
The CJEU decisively rejected this argument, making clear that it cannot be inferred from Svensson or Bestwater that there is no communication to the public simply because the protected works are freely available on the internet.
The CJEU’s ruling in GS Media will therefore be strongly welcomed by rights holders, especially owners of premium and frequently-pirated content, as it confirms in particular their ability to pursue those who aggregate links to content made available without the rights holder’s consent.