Most Read Contributor in Netherlands, February 2017
Since 9 September 2016, hyperlinking has become more risky. In
its long awaited Sanoma/GS Media judgment, the European
Court of Justice has clarified that the posting of a hyperlink to
unauthorised content protected by copyright and hosted by a third
party may result in copyright infringement. This will be the case
if the person posting the link knows or should have known that the
hyperlink directed visitors to illegally published works. The ECJ
also held that if hyperlinks are posted in the context of pursuing
financial gain, full knowledge about the possible illegal character
of the works is to be presumed. This means that commercial
parties in particular will now have to thoroughly investigate and
monitor what type of content they link to on their websites and in
other forms of online communication.
The case concerned a complaint by the publisher of Sanoma, the
Dutch edition of Playboy, about a posting by Geen Stijl (GS)
regarding as of yet unpublished pictures of Dutch reality star,
Britt Dekker. In its post, GS provided a hyperlink to an Australian
website where some of the copyright-protected Playboy pictures
could be downloaded. Sanoma argued that the mere posting of this
hyperlink constituted a "communication to the public"
protected by its copyright and that GS's publication of the
hyperlink could therefore be prohibited. GS argued that
hyperlinking does not fall within reach of the author's
exclusive right, because the ECJ did not consider linking to legal
content an infringement since there was no communication to a
"new public" (Svensson and Bestwater). In 2015, the Dutch Supreme Court
decided to refer preliminary questions to the ECJ.
The ECJ's answers in Sanoma/GS Media show that a
hyperlink's legal status is ambiguous. Under European copyright
law, hyperlinking to illegal content does not, in principle,
qualify as a "communication to the public". However, when
the person posting the hyperlink has or should have had knowledge
of the illegal character of the content hosted by a third party,
hyperlinking will fall within the scope of the
author's exclusive right and can therefore be prohibited. The
permissibility of a hyperlink thus has to be decided on the basis
of an individual assessment. In that context, the ECJ held that it
will be particularly relevant whether or not a hyperlink is posted
by a commercial party pursuing financial gain. As the Court felt
that commercial parties can be expected to carry out the necessary
checks before posting a hyperlink, they are presumed to be fully
aware of the legality of the third party content they link to.
Although this presumption can be rebutted, the GS Media
judgment is likely to have serious consequences for commercial website
operators in general, and news media in particular. The presumed
knowledge about the legality of content will apply not only in
cases where a hyperlink posting is directly connected with
the aim of pursuing financial gain, but also seems to apply to
websites seeking financial gain in the broadest sense of the word.
With the exception of state-owned media, practically all owners of
commercial websites will therefore run a higher risk of facing
liability when posting a hyperlink. In anticipation of the outcome
of the ongoing judicial process, commercial parties are therefore
advised to carefully readdress their take-down and screening
processes. Apart from that, commercial parties should carefully
reconsider the benefits of hyperlinking to third party content for
their business in general. They should check the legality of new
links that they post. And wherever possible, it is advisable to
regularly check the legality of third-party content after the
hyperlink has been posted, because content hosted by third parties
might later be changed without notification.
This decision also seems to mark a new approach to the exclusive
copy of 'communicating to the public' where the
qualification becomes dependent on subjective circumstances such as
the commercial intent of the user and his actual or presumed
knowledge of the material´s nature of source. This may lead
to legal uncertainty in other situations too.
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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