CJEU/ECHR cases on intermediary liability and hyperlinking
There were some interesting CJEU and ECHR decisions on intermediary liability and hyperlinking over the course of 2016.
ECHR decision on liability for user generated content
The European Court of Human Rights ruled upholding the Article 10 rights of two online portals in Hungary, finding that the local courts were wrong to hold the applicants (originally the defendants) liable for UGC on their websites. The ECHR said that the local courts had failed to balance the applicants' Article 10 rights with the Hungarian claimant's Article 8 rights to protection of reputation. Read more.
CJEU decision on hyperlinking
The Court of Justice of the European Union considered the issue of whether linking to content placed on a website without the copyright owner's consent, infringes copyright. It held, in GS Media (Case C-160/15), that hyperlinking to a copyright work that was published online without the copyright owner's consent will not constitute a "communication to the public" of that work, where the person posting the link had no knowledge that the work was originally published illegally. Further, it will be presumed that the person posting the link had knowledge of that illegality in circumstances where the hyperlink was posted for "financial gain". Read more.
CJEU ruling on liability for copyright infringement when offering free wi-fi network
This case was a reference from Germany which, until recently, held businesses liable for illegal activity on their w-fi networks. Germany has since introduced some protections for wi-fi operators but the CJEU judgment is still interesting in terms of intermediary liability. It held that:
- the provision of an open wi-fi network as part of a business (e.g. for the purpose of advertising goods or services) could constitute an information society service for the purposes of Article 12(1) of the e-Commerce Directive;
- communications network access providers who met the conditions of the 'mere conduit' defence set out in Article 12(1) of the e-Commerce Directive, could not be ordered to pay a copyright owner damages or cost of copyright infringement carried out by users of the network;
- a copyright owner could seek injunctive relief against such a provider to prevent continuing infringement and could claim costs from the provider;
- in terms of the injunction, the CJEU said there were three hypothetical options: monitoring communications passing through the connection (which would be contrary to the requirements of Article 15(1) of the e-Commerce Directive); terminating the connection (which would cause a serious infringement of the freedom to conduct a business and an imbalance of competing rights); or requiring password protection. The CJEU considered that requiring password protection would not create a significant imbalance in fundamental rights (in contrast with the Opinion of the AG) and, therefore, national courts could grant injunctions in this situation which implemented password-controlled access. The password system would have to require prospective internet users to reveal their identity so that action could be taken against them for any copyright infringement carried out using the wi-fi network.
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