European Court Rules Hyperlinks Can Infringe Copyright

The Court of Justice of the European Union (CJEU) has clarified the law around whether posting hyperlinks to infringing content online can be copyright infringement. They have ruled in the case of GS Media BV v Sanoma Media Netherlands BV and others, Case C-160/15, 8 September 2016 that posting hyperlinks to a work that has been illegally published on the internet could be 'communication to the public' for the purpose of copyright law and so could be secondary infringement of copyright.

Background

This case concerned a complaint by Sanoma, who are the Dutch publisher of Playboy magazine, concerning the posting of hyperlinks on the website of GS Media to third party websites where the publisher's photographs were illegally displayed. Sanoma requested the removal of these links several times however GS Media continued to post links to other websites where the photographs were available.

Judgment

It had previously been held that posting hyperlinks would not be communication to the public however in this case the CJEU has identified 3 situations where this could now amount to a communication. These are where the hyperlinker knew or should have known they were posting a link to copied work; the hyperlink was posted with the aim of making a financial gain and where the link allows users to access work that would otherwise be restricted.

In its judgment, the CJEU says EU member states should give copyright owners the exclusive right to authorise or prohibit communication of works but that there should be a 'fair balance' between the interests of rights holder and that of freedom of expression. Tellingly in this case the Court felt that it was 'undisputed that GS Media provided the hyperlinks to the files containing the photos for profit.'

Conclusion

It remains the case that unless it satisfies one of the criteria above a hyperlink will not generally be a communication to the public. Nevertheless this decision is a very welcome one for rights holders as it gives them an avenue to pursue secondary infringers who frequently facilitate the primary infringement of their rights by the posting of hyperlinks to copied materials.