Europe’s highest court, the Court of Justice of the European Union (CJEU), has ruled that the posting of a hyperlink on a website to works protected by copyright and published without the author’s consent does not automatically constitute a ‘communication to the public’, but has set two conditions.
In a decision handed down on 8 September 2016, the CJEU ruled that there is no communication to the public as long as the person posting the link does not seek financial gain and acts without knowledge that the works have been published illegally.
The court was ruling on GS Media v Sanoma Media, which concerned the leaking of photographs of Dutch TV presenter Britt Dekker due to be published in Playboy Magazine. GS Media operated a website which included hyperlinks directing users to websites where these photos could be found before they had been released by Playboy. The publisher of Playboy claimed that by posting hyperlinks to the photos, GS Media infringed the photographer’s copyright. The case will now be referred back to the Dutch Supreme Court for a final decision.
Tom Collins, Intellectual Property Associate at Stevens & Bolton LLP commented: “The decision strikes a fair balance between protecting the interests of copyright owners whilst preserving freedom of the internet in an age where hyperlinks are shared so prevalently. This will avoid a regime whereby internet users innocently posting hyperlinks are vulnerable to copyright infringement, such as on social media sites. However, the decision protects right holders by allowing them to take action against those deliberately facilitating access to content which they know (or ought to know) was illegally published, particularly in circumstances where the hyperlink is posted for profit.
For those sharing hyperlinks in a commercial context, there will now be an expectation to carry out checks to ensure that the content has not been illegally published. This will inevitably raise some practical difficulties for some online businesses.”
Tom’s comments have been featured by a number of leading publications reporting on this judgement – please click on the links below to read the articles in full:
- Bloomberg Technology
- World Intellectual Property Review
- World Trademark Review
- The Law Society Gazette
- The Times – The Brief
- New Law Journal