Hyperlinks and copyright – new law in the Playboy case

The Court of Justice of the European Union (the “CJEU”) has recently decided that a hyperlink can infringe copyright, provided that the party who posts the link knows it is to material that is illegally placed.

10 October 2016

The Court of Justice of the European Union (the “CJEU”) has recently decided that a hyperlink can infringe copyright, provided that the party who posts the link knows it is to material that is illegally placed on the internet. The case is Sanoma Media Netherlands BV (“Sanoma”) v GS Media BV (“GS Media”). The court did not follow the opinion of Attorney-General Wathelet who concluded that the appellant, GS Media had not breached copyright laws. The judgment itself sees a line being drawn in the law of copyrights, hyperlinks and the way in which they interact. The distinction made by the court goes against what many, including GS Media, had thought was a settled area of law following the ruling in Svensson and Others (C-466/12, EU:C:2014:76) (“Svensson”).

The facts of the case are relatively straight forward:

  • Sanoma had exclusive authorisation to use photos of Dutch TV personality Britt Dekker in its December 2011 edition of Playboy Magazine. 
  • In November 2011 GS Media, which hosts a popular news website in the Netherlands, posted a hyperlink to those images which were displayed on an Australian based website. Part of one of the photos was used to advertise the link of GS Media’s website. 
  • Despite numerous requests by Sanoma to remove the link, GS Media failed to do so. It also posted further links to other websites which also hosted the photos.
  • A case was brought by Sanoma in The Netherlands, and was eventually referred to the CJEU on a question of law. 
  • This question was in essence, whether, and in what circumstances, the fact of posting, on a website, a hyperlink to protected works, available on another website without the consent of the copyright holder, constitutes a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”)?

The Result

With reference to its judgment in Svensson, the CJEU sought to make a distinction between certain situations where posting a hyperlink could be considered an infringement of the InfoSoc Directive. In defining what a “communication to the public” was, the court said that where work was available to all internet users, but on another website, with the consent of the copyright holder, then a hyperlink to that website would not be a communication to a new public. The CJEU also stated that if the party posting the link did not know, or could not reasonably have known, that the copyright owner has not consented to the work being made available, then there is no breach of the copyright. 

But if the party posting the link knows, or could reasonably have known, that the link is to material which the copyright holder had not consented to being made available, this will be a communication to the public, in breach of the owners copyright. An obvious example of such knowledge would be where the copyright holder had informed you of this being the case, as Sanoma had done to GS Media. 

The effect
The justification behind the InfoSoc Directive was to balance the interests of the rightholders with those of the users of protected works. The specific issue being dealt with in this case is whether facilitating copyright infringement, by posting a hyperlink, constitutes copyright infringement in and of itself. By finding in favour of Sanoma, the court has taken the opportunity to highlight the importance it places on protecting the creators of works. 

This decision has potentially far-reaching implications. The CJEU emphasises the need for the party to have known, or have been reasonably able to know, that it was posting a link to illegally placed material. In the present case the knowledge of GS Media was obvious. But the issue lies in what constitutes “reasonableness”. The CJEU fails to define what it means when it says a party could “reasonably have had knowledge”. Depending on the interpretation of this term, the average internet user who uses and creates hyperlinks could be faced with the need to make enquiries about ownership of other websites content. Undoubtedly there are numerous posts on the internet that “the creator” doesn’t know about, let alone has given permission to be displayed. This judgment could leave many unknowingly in breach of copyright laws. How the national courts will approach this issue remains to be seen.