The issue being addressed is whether hyperlinking on a website to works protected by copyright and published without the author’s consent on another website constitutes an act of copyright infringement.

In the opinion of the Advocate General, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another website cannot be classified as an act of ‘communication to the public’.  Were this to be followed, the hyperlinks posted on GS Media’s website to third party websites that contained leaked photographs of Ms Dekker would not constitute an act of copyright infringement.

The Court of Justice of the European Union (CJEU) has today passed down its preliminary ruling in the case.  The headline is:

“The posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.  However, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.”

The CJEU has had to balance the interests of copyright holders with the importance of the internet for freedom of expression and information and the role hyperlinks play in its sound operation.

For the purposes of assessing whether the act of posting a hyperlink to a work freely available on another website, but published without the rightholder’s consent, constitutes a ‘communication to the public’, it appears to be necessary to take into account the knowledge of the person posting the hyperlink and whether that person is pursuing a profit.

The CJEU held that, where the posting of the hyperlink is done by a person not pursuing a profit, it is necessary to take account of the fact that the person does not know and cannot reasonably know that that work has been published on the internet without the consent of the copyright holder.  Such posting does not constitute a ‘communication to the public’.

In contrast, if the person knew (or ought to have known) that the hyperlink provided access to a work illegally published, e.g. owing to that person being notified of such by the copyright holder, posting that hyperlink constitutes a ‘communication to the public’.  Also, when the hyperlink is posted for a profit, the CJEU considered that it can be expected that the person posting the link should carry out the necessary checks to ensure the work being linked to is not illegally published.  On this basis, it must be presumed in this that the posting has been done in full knowledge of the protected nature of the work and the lack of the rightholder’s consent to the publication.  In such circumstances, unless the above presumption is rebutted, the act of posting a hyperlink to a work illegally published constitutes a ‘communication to the public’.

Returning to the parties, the CJEU considered it undisputed that GS Media provided the hyperlinks for profit and that the publication of the photos has not been authorised by Sanoma.  In posting the links, subject to checks to be made by the Dutch Supreme Court, GS Media has effected a ‘communication to the public’.  The case will now return to the national court.

The decision of the CJEU presents the possibility for copyright holders to pursue action against third parties posting hyperlinks for profit to illegally published works.  It has also highlighted the importance for persons or companies posting hyperlinks on their websites to consider the purpose for posting the hyperlink, e.g. for a profit, and the legality of the published content being linked to.

If you would like advice on how this decision may affect you, please get in touch with one of our attorneys who will be able to assist you.