The issue of hyperlinking and embedding content online is a niche yet important topic, which demonstrates the difficult balance for the courts to strike between a strict application of the law and understanding the practical effects of a decision.
Svensson v Retriever Sverige
Before GS Media, the leading case in the area of copyright infringement by a communication to the public via hyperlinked content was Svensson & Others v Retriever Sverige AB (C-466/12).
In Svensson, it was held that providing hyperlinks to copyrighted material could be an act of communication under Article 3 Directive 2001/29/EC (Info Soc Directive), however, if the linked content was already 'freely available' there was no 'new' public accessing the content and therefore no act of infringement. Whist this decision was generally welcomed, it did raise a number of practical questions such as the definition of 'freely available' – did this include content that was deeply hidden on the internet, albeit free to access? Svensson also introduced an unwelcome psychological element to the test of infringement, as the test included consideration of what public the rights holder was considering when the original content was uploaded, and whether the public accessing the content via the hyperlink was an additional unforeseen audience. Lastly, commentators queried liability for infringement if the hyperlink linked to content that was unauthorised by the rights holder.
The case of GS Media BV v Sanoma Media Netherlands BV & others (C-160/15) provides the next chapter in this area of law.
By way of factual background, in GS Media an online publisher provided a hyperlink to leaked photographs. The rights holder requested a take down of this unauthorised content; however the publisher refused (noting that the rights holder successfully managed to remove the content by contacting the image company, which blocked the photographs).
The Court of Justice of the European Union unusually applied the law in its judgment, as opposed to leaving the national court to interpret the principles. Whilst the decision confirmed the previous position regarding the question of accessibility of the linked content, (ie, that linking to authorised, freely accessible content would not constitute an act of infringement, whilst linking to content that was authorised but not freely accessible (eg, behind a paywall) may result in infringement), GS Media goes further to consider the nature of unauthorised content. It was held that if the linked content is freely accessible but not authorised by the relevant rights holder, there are now three options to consider:
- If the publisher is aware that the content is unauthorised, there may be infringement (ie, the rights holder notifies the publisher and requests a takedown).
- If the (non-profit making) publisher does not know the content is unauthorised, there is no infringement.
- If the profit-making publisher links to content that is unauthorised, there is infringement – rebuttable if the publisher can prove they did not know the nature of the content. It is important to note that the usual defences can still apply; except if the rights holder notifies the publisher that the linked content is unauthorised and the publisher does not remove the link, the publisher cannot rely on the exceptions in Article 5(3) Info Soc Directive.
As it stands, we are left with a number of dubious terms which will require definition and closer analysis, eg, 'freely accessible' and 'profit'. It is also not clear how this will affect publishers who link to leaked information (as clearly they are aware of the unauthorised nature of the content) or how far the chain of liability will run through interlinking websites (ie, if website A links to website B, which in turn links to the copyrighted content, is website A liable (especially if website B is non-profit)?).
In short
The decision in GS Media was expected to clarify the position in Svensson, which had resulted in some impractical consequences if followed strictly. Whilst the GS Media judgment has moved the position forward, further case law is still required to consider and define this area of law.
Case details at a glance
- Jurisdiction: European Union
- Decision level: Court of Justice
- Parties: GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, Britt Geertruida Dekker
- Citation: C-160/15
- Date: 08 September 2016
- Full decision: dycip.com/c-16015
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.
