European Union: The AG Makes The (Hyper) Link

Last Updated: April 27 2016
Article by George Sevier

Advocate General (AG) Melchior Wathelet has recommended that the Court of Justice of the European Union (CJEU) adopt a course in the 'GS Media' (Playboy) case that would clarify the status of hyperlinks to copyright infringing material.

If the court adopts the recommended approach, it would depart from Svensson and clear the way for hyperlinks to websites hosting copyright infringing material that is already freely accessible to the public.

Main question raised in the GS Media case

The case before the CJEU is between Sanoma (the publisher of Playboy) and GS Media. GS Media posted, on its website, hyperlinks to other websites (including that hosted leaked photographs of Dutch starlet, Britt Dekker, before Playboy had officially published the photos in 2011. was clearly in breach of copyright, not having consent to use the photographs. The issue, however, is whether GS Media's posting of hyperlinks to this infringing content falls within the restriction of Article 3(1) of Directive 2001/29 (the InfoSoc Directive).

What the AG recommended

Hyperlinks do not "per se" constitute an infringement

On 7 April 2016, AG Wathelet recommended, essentially, that the court rule that providing a hyperlink to another website, on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder, is not in itself infringement.

The AG reasoned that the provision of such a hyperlink, which may facilitate or simplify users' access to the works in question, is not an act of "communication to the public". Consequently, awareness of the lack of consent by the copyright holder for the initial communication is irrelevant.

But: "Circumvention" links may do!

However, where the hyperlink provides an indispensable intervention that a user would need in order to access information, the position is different.  So, where the purpose of a hyperlink is to circumvent website restrictions, so as to intervene and make otherwise restricted information available, the posting of the hyperlink would become an act of communication capable of infringing.

What Article 3(1) of the InfoSoc Directive says

The article states that:

"Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them" (emphasis added).

How the AG's approach fits with CJEU jurisprudence

In the Svensson case, the background was that hyperlinks had been posted on a website to articles that had been published in a newspaper without the consent of the authors. The CJEU held that the mere provision of hyperlinks to copyright protected works does constitute an act of communication because the links must be considered to make the works available. However, in order to infringe, the communication had to be directed to a "new public" (i.e. a public not taken into account by the copyright holders when they authorised the initial communication). It was only on the finding of the hyperlink's failing to communicate to a "new public" that the hyperlinks were considered not to infringe copyright.

Needless to say, the Svensson decision posed more questions than it answered. Did the decision apply to links to infringing content? If a website was freely accessible, but its terms and conditions prohibited its content for certain purposes, would this amount to infringement? Would access restrictions be relevant?

Interestingly, whereas in Svensson the CJEU indicated that the provision of clickable links to protected works must be considered to be an 'act of communication', in the GS Media case AG Wathelet opined that the provision of hyperlinks cannot be classified as an act of communication, unless the provision of hyperlinks is an indispensable intervention without which the copyright content would not be made available to internet users. AG Wathelet considered that his views on the need for an indispensable intervention were consistent with the ruling of the court in Football Association Premier League, but another reading of that judgment is that the matter of indispensable intervention is only relevant to whether the communication is made to a new public.

In the GS Media case, AG Wathelet opined that the "new public" criterion adopted in Svensson would only be applicable where the copyright holder has authorised the initial communication to the public, which was not relevant in the GS Media case. In doing so, AG Wathelet has arguably misconstrued the earlier judgments such as Svensson and Football Association Premier League. Those cases were concerned with scenarios where the copyright holder had authorised the initial communication to the public. However, those cases did not say that the "new public" criterion was only applicable in such a circumstance.

It will be interesting to see whether the CJEU adopts the AG's approach, or reverts to the more simplistic Svensson approach of whether there has been communication to a new public. Either way, the CJEU is likely to reach the same conclusion in the current case - providing a hyperlink to infringing content on another freely accessible website does not amount to copyright infringement.

Practical implications for copyright owners and websites hosting links to other websites

For copyright owners, AG Wathelet's opinion does not open a new avenue for enforcement against website operators providing links to infringing content, but it makes clear that, irrespective of whether an action for infringement of Article 3(1) of the InfoSoc Directive is available, other remedies may remain open to the copyright owner.

For example, the copyright holder may remain able to sue the person who effected the initial communication to the public without his authorisation (though that is likely to require proceedings to be commenced in another jurisdiction), or to seek a blocking injunction against the operator of that website under Article 8(3) of the InfoSoc Directive and Article 11 of Directive 2004/48/EC (the Enforcement Directive). Reiterating the availability of such other relief, AG Wathelet endorsed the use of website blocking orders in respect of websites hosting infringing content (rather than those merely providing links to it) as being "a direct and appropriate remedy".

For websites hosting links to other websites, AG Wathelet's recommendations, if adopted by the court, would provide further comfort for the operators of websites hosting links, that they need not ensure that the linked content is authorised by the copyright owner, without giving a green light to subversive links (for example links which bypass pay walls). It would safeguard the dissemination of information and knowledge on the internet as we know it today.

For more on the approach of the UK courts post Svensson, and questions referred to the CJEU from the Dutch Supreme Court please see our article on website blocking orders for copyright infringement and our article relating to the Court of Justice reviewing the basis of ISP blocking injunctions. For our commentary on the availability of website blocking orders in Germany, please see our article ISP blocking injunctions are possible in Germany (but not easy to come by).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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