European Union: Hyperlinks And Copyright Law – Where Does Responsibility Lie?

In recent weeks, Advocate General Wathelet ("AG") – an independent advisor to the Court of Justice of the European Union ("CJEU") – delivered his Opinion in GS Media v Sanoma 1  The Opinion is significant as the AG found that posting a hyperlink to content on another website, which was made available without authorisation, is not in itself copyright infringement. The AG found this to be the case even where the hyperlink provider knew, or should have known, that the material hosted on the linked website was infringing copyright.

Questions to the CJEU

Sanoma, publisher of Playboy magazine, commissioned a photo-shoot of Dutch celebrity Britt Dekker. The photographs were leaked before Playboy's monthly issue was published and appeared on an Australian file-hosting website. GS Media, through its website Geenstijl, advertised hyperlinks that brought its users to the Australian website hosting the leaked images.

Despite receiving demands from Sanoma, GS Media refused to remove the hyperlinks. The Australian website complied with Sanoma's request to take down the images, but GS Media made further links available to another website hosting the images. Sanoma brought an action against GS Media claiming that the hyperlinks had infringed copyright.

The case was appealed up to the Supreme Court of the Netherlands, which requested a preliminary ruling from the CJEU concerning the interpretation of Article 3(1) of Directive 2001/29/EC (the "Copyright Directive"). In summary, the Dutch court asked the CJEU to confirm:

  1. Whether providing a hyperlink to another website, which contains copyright-infringing material that is accessible to the general internet public, constitutes an act of "communication to the public".
  2. Whether it matters if the hyperlink provider knew, or should have known, that the material on the linked website had been published without the authorisation of the copyright owner.
  3. If it is relevant that the hyperlink provider is facilitating access to the relevant copyright works.

Communication to the Public

The Copyright Directive does not contain a definition of "communication to the public". However, CJEU case law provides that the concept includes (i) an "act of communication" of a work and (ii) the communication of that work to a "public". The AG examined these two criteria.

Not an Act of Communication

On the first point, the AG stated that, in a broad sense, communication to the public includes the act of "making available to the public". Past case law has limited this concept to either a transmission or retransmission. This, according to the AG, would not be satisfied by hyperlinks.

The AG turned to consider whether a hyperlink might even be considered an "act of communication". He decided that hyperlink providers are not "making available" those works to a public because the works are already freely accessible from the linked site. Hyperlinks only serve to facilitate the works' discovery and therefore cannot be classified as an "act of communication". The AG explained that, in order to establish an act of communication, the 'hyperlinker' must be vital or indispensable to others benefiting from or enjoying the works. Here, it was found that the hyperlinker – GS Media – was not indispensable to the making available of the photographs to internet users. In addition, given that the AG found there was not an "act of communication", he decided that it was not relevant whether GS Media was aware, or should have been aware, of Sanoma's lack of authorisation.

A 'Public'?

Moving to the second point, the AG examined the communication of the work to "a public". Although expressing that these hyperlinks were certainly aimed "at a public", the AG considered that the works had not been directed "at a new public". This specifically turned on the fact that this limb to the test requires that the copyright holder has authorised the initial communication to the public, which had not occurred here.

The AG noted, however, that it was not clear to him whether the works were freely accessible to the general internet public via the third party websites. Given this issue, which arose from the lack of clarity between the various documents submitted, the AG left this factual question to be resolved by the Dutch court. The AG highlighted that GS Media could still be found to be indispensible if the hyperlinks allowed users to "circumvent restrictions" on the linked site.

What Does This Mean?

It is important to recall that the AG is an independent, yet influential adviser to the CJEU. While an AG's Opinion is not strictly binding, it is common for the CJEU to follow AGs' Opinions. Given this, it is possible that the CJEU will decide this case in a similar manner.

To the extent that the CJEU follows the AG, the current takeaway from the case is that posting a hyperlink to another website, where copyright works are freely accessible to the public without authorisation, does not constitute an act of communication to the public. According to the AG, if there was a legal risk every time an internet user posts a link, the effects "would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society".

Remedies Available to the Copyright Owner

Right holders still have alternative remedies. In particular, they can bring an infringement claim against the individual who made the initial communication without their authorisation. They can also apply for an injunction against the website operators who initially uploaded the material and the website operators may also be liable under national law.

Footnotes

1 GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Dekker  (Case C‑160/15)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions