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by the publisher of Sanoma, the Dutch edition of Playboy, about a posting by Geen Stijl (GS) regarding as of yet unpublished pictures of Dutch reality star, Britt Dekker.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.
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