Joel Vertes

Joel Vertes

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13 September 2016

Critical CJEU judgment decides whether hyper-linking amounts to copyright infringement


Background


For both individual web users and commercial online businesses, linking to third party content is essential, especially in the age of social media. But by linking to copyright content, does the user risk infringing it by unlawfully "communicating it to the public"?

In two previous cases (Svensson and Bestwater) the CJEU had examined linking. It held that, where you are linking to content which is already freely available online, you are not "communicating to the public" those works, because they are already accessible. By contrast, if you link to material which is, for instance, behind a paywall, then there will be a new communication to the public.

GS Media v Sanoma Media Netherlands and Others (C-160/15).

The case of GS Media then examined what happens when the content was uploaded to the internet without the copyright owner's consent. Nude photos of a Dutch TV presenter, commissioned by Sanoma for Playboy, had been leaked and posted on an esoteric Australian website. GS Media then posted links to the images on one of its websites, GeenStijl, and were sued by Sanoma.

In this case, the CJEU held that, where copyright content has been posted online without the owner's consent:

  1. merely linking to that content will not infringe the copyright unless you knew or ought to have known that the content was unlawfully posted; and
  2. if you posted the link for "financial gain", there is an automatic (rebuttable) presumption that you knew or ought to have known. This is because the person who posted a hyperlink for profit can be expected to carry out the necessary checks to make sure that he or she does not link to illegally published material.

What does this decision mean?

The decision draws a distinction between, on the one hand, normal non-commercial internet users, and on the other, those who "post hyperlinks for profit".

Non-commercial users

In relation to the first category, the acid test of liability for them is whether they knew or ought to have known that the content had been placed online without the copyright owner's consent.


The decision will come as a relief to social media fans, who share content with little regard for its copyright nature. In most cases, it is safe to assume mere individuals will not have such knowledge inferred, without some other evidence of knowledge (e.g. if the user had been told there was no consent to share it, or if it is behind a paywall). However, there may well be exceptions – for example if a new film is leaked on line prior to its release in cinemas and the website it appears on is a known file-sharing or content piracy site – a user who links to it could well be inferred to have the requisite knowledge.

Importantly, the "knowledge" test means that as soon as the individual user is put on notice that the content is infringing, they will have to take the links down to avoid incurring liability.

Commercial users

However, for internet businesses who link to third party content for profit, the decision raises significant new questions about their liability if the content turns out to be infringing. The battleground will be on what it means to be "linking for financial gain". There are some clear examples of profit made directly from an individual link – for instance, a link on a pay-per-view website, or from sponsored links on search engines.


However, it is quite feasible that "profiting" could include profit from the website as a whole (e.g. from advertising). Future case law may seek to draw a closer link between profit and the link itself. For the moment, however, it is arguable that any financial benefit obtained by a company from the link or the website on which it appears, may be sufficient. This would give rise to the (rebuttable) presumption that the linker knew or ought to have known whether the content was released online unlawfully.

For example, the CJEU has previously ruled that where a spa hotel establishment gave its customers access to a broadcast work via television and/or radio, they did so seeking to obtain some financial benefit, by increasing the hotel’s/spa's standing and hence uplifting the price of rooms/spa treatment. Hence, those broadcasts were deemed profit-making. By contrast, playing music in a dental practice was not considered profit-making, as patients visit a dentist with the sole objective of receiving dental treatment and the broadcasting of phonograms added nothing in value to the user.

The GS Media decision is therefore likely to give rise to significant concern for online businesses, who should now consider their hyperlinking policies carefully to ensure they are not deemed to be infringing third party content by communicating it to the public.  The challenge will be trying to rebut the presumption of knowledge: proving a negative is not easy.

Conversely, the decision should be of some relief to content creators, who can more easily ensure their content is not shared without consent.

For more information, contact Joel Vertes