European Union: The CJEU's Decision In GS Media: Connecting The Dots On Hyperlinking

The Court of Justice of the European Union ("CJEU") issued on 8 September 2016 a landmark ruling in GS Media, C-160/15 on hyperlinks and copyright infringement. In its judgment, the court sought to clarify the law in this area and materially departed from previous case law which was fraught with uncertainty since the CJEU's earlier decision of Svensson, C-466/12 in February 2014.

In GS Media, the CJEU ruled:

In order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a "communication to the public", it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which knowledge must be presumed.

Factual Background

The decision arose from a reference for a preliminary ruling by the Dutch Supreme Court in a dispute between Sanoma, which publishes Playboy magazine, and GS Media, which runs the popular website "GreenStijl.nl". Sanoma objected to the publication by that website of hyperlinks to other websites hosting unpublished photographs of media personality Britt Dekker, over which Sanoma had the rights and which it intended to publish in a forthcoming issue of Playboy. Despite Sanoma's demands, GS Media refused to remove the hyperlinks from the website. The dispute was initially heard in the Amsterdam District Court and was subsequently appealed to the Amsterdam Court of Appeal and the Dutch Supreme Court, before being referred to the CJEU.

The Legal Issue

The case's reference for a preliminary ruling concerned the interpretation of article 3(1) of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society ("InfoSoc Directive"), which stipulates 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.

In GS Media, the CJEU considered whether, and in what circumstances, posting on a website a hyperlink to protected works, which are freely 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 the InfoSoc Directive.

The Court's Approach

In approaching this question, the CJEU first noted the lack of definition of "communication to the public" in the InfoSoc Directive, and the need to provide a fair balance between the interest of copyright holders on the one hand and the protection of the fundamental rights of internet users on the other, in particular their freedom of expression and of information. Considering the earlier case law in this area, in particular Svensson, Reha Training, C-117/15 and Bestwater, C-348/13, the CJEU recalled that the concept of "communication to the public" requires (i) an "act of communication" of a work, and (ii) the communication of the work to a "public". It also recalled that for the purposes of such an assessment, the court must take account of several complimentary criteria, including (i) the indispensable role played by the user and the deliberate nature of its intervention, (ii) the use of specific technical means to communicate or, failing that, the existence of a new public, and (iii) the profit-making nature of the communication.

Crucially, however, the CJEU sought to downplay in its judgment the earlier decision of Svensson—which generally regarded hyperlinks as acts of communication—by holding that the decision merely confirmed the importance of the rights holder's consent under article 3(1) of the InfoSoc Directive. Thus, the CJEU effectively agreed, at least in part, with some of Attorney General Wathelet's thinly veiled concern about Svensson in his earlier opinion of April 2016, and set the ground for a change of law in this area.

In doing so, the CJEU appears to have been convinced that the original approach in Svensson could have a highly damaging effect on the sharing of information online and fundamentally undermine the operation of the internet. In particular, the CJEU expressed the view that: (i) the internet is 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; and (ii) it may be difficult, in particular for individuals who wish to post such links, to ascertain whether the website to which those links lead provides access to works which are protected and, if necessary, whether the copyright holders have consented to their posting on the internet.

Is Hyperlinking Permissible?

As a result, the CJEU held that hyperlinking to a work freely available on another website will not constitute an act of communication to the public (and therefore not be prohibited) where the person doing the linking (i) does not do so for financial gain, and (ii) does not know and cannot reasonably know that the work has been published on the internet without the copyright owner's consent.

In contrast, the CJEU held that hyperlinking should be prohibited where the person knew or ought to have known that the hyperlink he or she posted provides access to a work illegally placed on the internet, for example if he was so notified by the copyright holder. A hyperlink should also be prohibited where it allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public's access to its own subscribers (e.g. via a pay wall).

In addition, the CJEU added a presumption when the posting of hyperlinks is carried out for profit. In such cases:

it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of the work and the possible lack of consent to publication on the internet by the copyright holder.

In the facts of the case, GS Media had posted the links for profit and was well aware that the photos has been published without Sanoma's permission. GS Media had therefore effected a communication to the public and infringed the copyright in the photos.

Conclusion

The CJEU's decision in GS Media will be welcomed by those who disagreed with the CJEU's initial approach in Svensson and were concerned that it may have resulted in the sharing of information on the internet being stifled. Copyright holders and internet users alike may also likely welcome the measure of clarity it brings to an otherwise difficult and uncertain area of law.

However, it is worth noting that the CJEU decision also raises a number of questions and leaves some uncertainty as to how the infringement test it has introduced will be applied. Importantly, it has introduced a "knowledge" requirement in determining whether hyperlinks constitute acts of communication to the public. This appears at odds with the fact that an unauthorised "communication to the public" of a copyrighted work is an act of primary infringement, which should be a matter of strict liability. The CJEU is suggesting that, at least in hyperlinking cases, the defendant's state of mind should be considered, so it remains to be seen how this position will be reconciled with the rest of the law in this area.

The judgment also appears to introduce the possibility of a new notice-and-takedown system by enabling right holders to inform persons who have published hyperlinks of the illegal nature of the publication and to take action against them if they refuse to remove that link. It remains to be seen how this system will operate in practice. Similarly, it will be interesting to determine how the knowledge presumption operates for persons posting hyperlinks for profit and what "necessary checks" such persons will be expected to undertake to protect themselves from liability.

While the law continues to draw the key principles in this area, it may therefore still take some time before these become settled—and before copyright holders, internet users and IP practitioners come to see the full legal picture.

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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.