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).

Links A-OK - Hyperlinking to Infringing Material Online is OK, Says AG Wathelet

Since the CJEU's decision in Svensson the fate of hyperlinking in a European context has been up in the air, especially when it comes to copyright infringing materials and directly linking to that content. This is an incredibly important issue, and one that might have ramifications beyond our wildest imaginations, leading to great issues to how the Internet operates in today's world. While the CJEU deliberates its decision in the matter, Advocate General Wathelet provided us with a preview on the potential swing of the CJEU's vote in an opinion that was awaited by many.

The case of GS Media BV v Sanoma Media Netherlands BV dealt with the sharing of images online, specifically linking to images that have been deemed to infringe copyright. Sanoma Media, the publisher of the famous magazine Playboy, had commissioned a photographer to take photos for the magazine of Britt Dekker, a Dutch TV personality. Prior to their publication in Playboy the photos were leaked, and found their way onto an Australian file data storing website Filefactory. These images were then published on the website of a Dutch tabloid magazine, GeenStijl, who linked directly to the photos' location on Filefactory (where they could be downloaded as a zip file). Despite Sanoma's demands to do so, GeenStijl refused to remove the link to the website, although they were eventually removed from Filefactory. After pursuing GS Media through the courts, GeenStijl repeatedly posted new links to the photos in subsequent articles about the litigation, and the matter eventually ended up for the CJEU to decide.

The questions referred to the CJEU essentially dealt with whether the sharing of a hyperlink on another website containing infringing materials would be a 'communication to the public' under the InfoSec Directive.

In his opinion, AG Wathelet summarized the first question asked from the court as "...whether Article 3(1) of [the] Directive... must be interpreted as meaning that the provision on a website of a hyperlink to another website operated by a third party, which is accessible to the general internet public and on which works protected by copyright are made available to the public, without the authorisation of the copyright holder constitutes an act of communication to the public". Additionally, the Advocate General had to give an opinion on whether this question would be impacted by knowledge on part of the sharing party as to the lack of consent to share the content, and whether the previous publication of the work (or lack thereof) is of any relevance.

What remained a point of contention in the case is the findings in both the Svensson and BestWater cases, which the Advocate General first addressed. What both of the cases ultimately boiled down to was that the provision of hyperlinks to works that are freely available would not amount to a 'communication to the public', and therefore escapes infringement. Authorization of the initial publication was never an issue (although not approved in BestWater), or seemed to affect both decisions according to his opinion.

Ultimately, the Advocate General looked at the two criteria set out to establish a communication to a public, meaning looking at whether there has been 'an act of communication', and that it has been done to a 'public' (or a new public, considering Svensson).

Some links can lead to unsavory results

In answering the first criterion, the Advocate General took the position that the provision of a hyperlink to another website containing infringing works would not be an act communication, explaining that: "Although it is true that hyperlinks posted on a website make it much easier to find other websites and protected works available on those websites and therefore afford users of the first site quicker, direct access to those works, I consider that hyperlinks which lead, even directly, to protected works do not ‘make available’ those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works". The Advocate General therefore distinguishes between the provision of the materials, and the finding or accessing of those materials, even if they infringe or not. What seems important in his opinion is the initial provision of the works, and not their subsequent sharing even via hyperlinks. He further iterated this position through the decision in Football Association Premier League and Others, where the intervention of the materials (and their subsequent provision for the first time as infringing copies) was key, which a hyperlink would not do, as it does merely facilitate an already available work. He concluded that "...in order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy works". In his opinion GS Media therefore did not communicate the works, as their intervention was not indispensable in order to access the infringing works. He also considered that, as the question was answered in the negative, the question of a lack of authorization (and knowledge thereof) was irrelevant, even through 'nefarious' intentions.

The Advocate General then considered the question of whether the act of communication was done to a 'public'. He outright rejected the applicability of the 'new public' consideration borne in Svensson, deeming it not applicable in this instance (and potentially in other instances as well as a result). This would only be applicable when the work has been authorized, and thus accessed illegally for the benefit of a new public (i.e. from behind a pay-wall). Even if it applied in the event of a lack of authorization, the above intervention considerations would still apply, negating the assessment as the hyperlink would not add to the potential public that already could access the materials. He concluded that question 2 would therefore be answered in the negative.

The Advocate General made general observations as to this issue and the Internet: "...aside from the fact that, in principle, the posting of the hyperlinks in the main proceedings does not, in my view, constitute a ‘communication to the public’... I consider that any other interpretation of that provision would significantly impair the functioning of the Internet and undermine one of the main objectives of [the] Directive... namely the development of the information society in Europe. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter’". He further emphasized the necessity of hyperlinking for the functionality of the Internet, and the lack of ability of Internet users to check sources of materials and whether they were authorized or not. If the posting of hyperlinks were to infringe copyright, users would not post them as readily, which would impede the development of the worldwide web.

The opinion leaves the matter quite open, and departed from the CJEU's previous considerations in Svensson and BestWater. Whether the CJEU follow the Advocate General's opinion remains to be seen, but as he wisely raised in his opinion, hyperlinking is essential to how the Internet works, and a balance has to be struck between the provision of links, but the protection of intellectual property from those seeking to blatantly benefit or even undermine this privilege. This writer will await the CJEU's decision with great intrigue, and hopes they will follow along the lines of the Advocate General.

Source: IPKat