09 September, 2016

Link Away - CJEU Decides Hyperlinking to Images is Not Communication to the Public

After the Advocate General's opinion on the GS Media (discussed here) case some 5 months ago, many people in the IP sphere have awaited the ultimate decision of the CJEU with baited breath. While the Advocate General's opinion reflected a pragmatic, very liberal interpretation of the legislation, some seemed skeptical on whether the CJEU would follow his thoughts. After, what felt like a small eternity to this writer, the CJEU has released its judgment on the case yesterday.

The case of GS Media BV v Sanoma Media Netherlands BV dealt with pictures of Britt Dekker (a famous Dutch TV personality), commissioned by Sanoma Media for publication in Playboy magazine. Prior to their publication, the images were somehow acquired and posted by a user on the file-sharing service Filefactory; a link to which was subsequently sent to the website GeenStijl, which is operated by GS Media. GeenStijl shared a part of one of the images of their website, with an additional hyperlink to Filefactory where users could download the images onto their computers. Although vehemently demanded by Sanoma Media, GS Media refused to remove the link from the website, although the content itself was removed from Filefactory. Sanoma Media then took GS Media to court for copyright infringement, which ultimately ended in the CJEU.

The Court had to determine "...whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29".

The context is important here too, as the images in question had not been published prior to their leaking to the website and then to GS Media, and their hyperlink makes the finding of the files a lot easier and they had, or ought to have had, the knowledge that the works' publication on that particular website was not authorized.

Following the judgment in Svensson (discussed more here), the concept of a 'communication to the public' under the Directive consists of two criteria, specifically  an 'act of communication' that was communicated to a 'public'. While the Court followed its earlier decisions on the nuances of what amounts to a communication to the public, the meat of the matter lie in the application of this in the current scenario.

As was decided in Svensson, posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ (followed in the BestWater case). The Court did distinguish that, in both of the aforementioned cases, the content linked to was authorized by the copyright holder, i.e. the content was legally on the website that the hyperlink lead to (meaning there was no new public for the content) As further clarified by the Court: "...as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public". This clearly distinguishes this case from both Svensson and BestWater, as the content was not authorized and therefore, arguably, the communication happened to a 'new public'.

The Court refused to infer the above, and stated that, to protect the freedom of expression and the Internet as we know it, one cannot simply categorize all linking to unauthorized content as a communication to the public. They further saw that, in assessing whether a communication to the public in such a scenario, one has to consider "...when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder". What remains interesting is the potential liability of an unknowing sharer, who still makes a profit by doing so. Ultimately, this seems to just raise the bar for negligence (or a willful blind eye), but is a curious consideration made by the Court.

Hyperlink profiteers enjoying their unlawful gains for one last time
The judgment did not, however, give everyone a free pass: "In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1)". This makes sense, and would offer a safe harbor for those who were notified of any infringing content, especially if it had been placed there without the express authorization of the rightsholding party. The Court also put the onus on checking the content on those who gained a profit from sharing hyperlinks to other websites: "...it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1)". Knowledge, or presumed knowledge, is key here, and clearly the Court wants to curtail profiteers who would use this 'loophole' for their own benefit by sharing links to infringing, unauthorized content.

The Court then finally summarized their findings to the questions posed: "...the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed".

The decision is a very interesting one, and this writer had been waiting for it for some time. What seems surprising is the emphasis of financial gain, but it makes sense, as often those who do not pursue pure monetary gains will be more honestly ignorant to the content  they have shared than those who aim to profit from it (often knowing full well what they are sharing, as it is the source of their users).

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