A CJEU case involving leaked Playboy photos may confirm that hyperlinks to third party sites will rarely violate copyright, even where the link is to infringing content.

Hyperlinking, providing a clickable link directing a user to another website, is one of the basic tools of online communication.  Almost every webpage, including this blog post, will link to pages within the same website and also to external websites.

However, difficult cases arise where the creators of copyright works argue that their rights have been infringed by hyperlinking.  Such arguments arise where a hyperlink, without a copyright holder’s consent, directs the reader’s browser:

1. to a work that the copyright holder has permitted to be freely available online;
2. to a work that the copyright holder has permitted to be made available online but behind a paywall, circumventing such paywall;
3. to a work that is freely available online without the copyright holder’s consent.

Two recent Court of Justice of the European Union (“CJEU”) decisions, and an Advocate General’s opinion in a case in which a ruling is awaited, suggest that copyright law in the EU will only assist a copyright holder in the second circumstance above: circumventing a paywall or similar technical measures.

Article 3(1), Svensson and Bestwater

Article 3(1) of the Copyright Directive (Directive 2001/29/EC, also known as the InfoSoc Directive) states as follows:

“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

We have previously discussed the CJEU decision in Svensson (Case C-466/12).  In a dispute concerning a site which aggregated news articles on other sites by means of hyperlinks, the CJEU ruled that Article 3(1):

“…must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.”

The CJEU in Svensson also concluded that Article 3(1) precludes Member States from giving wider protection to copyright holders by widening the concept of “communication to the public” in national laws.

The reasoning in Svensson included that such hyperlinks fell outside Article 3(1) as they could be a communication of a copyright work to a public, but not a new public, because the copyright material is already online on the page to which the reader has been directed.  In an important qualification, the CJEU indicated that a hyperlink which circumvents a paywall would constitute a communication to a new public.

The CJEU similarly held in BestWater (Case C-348/13) that “in-line linking” or “framing” does not violate copyright, for example where a Youtube video is “embedded” on a site or an image is shown in search engine results.

GS Media v Sanoma, Playboy and Dekker

The question has arisen again in the context of a hyperlink to works made available online without the copyright holder’s permission.

Britt Dekker, a Dutch television star, was the subject of a photoshoot for the Dutch edition of Playboy magazine.  Before publication of the magazine, the photographs were leaked and uploaded as a zip file to a file hosting website, FileFactory.com.   The popular blog GeenStijl posted links to the FileFactory page and later to another file hosting site, ImageShack.us.

Important features are the case are that:

• the photographs had not previously been made available to the public with the rightholder’s consent; and
• the posting on a file hosting website meant that they were freely available online, but in an extremely obscure manner, so the fact of a popular blog directing readers to them made them much easier to access.

Playboy’s Dutch publishers Sanoma Media Netherlands BV, Playboy Enterprises International Inc and Ms Dekker brought proceedings and at first instance were awarded damages for breach of copyright by the blog’s publishers. The matter was ultimately appealed to the Supreme Court of the Netherlands, which referred questions as to hyperlinking to material without the rightholder’s consent to the CJEU (Case C‑160/15).

The oral hearing in GS Media took place on 3 February 2016.  Judgment has not yet been handed down, but the Advocate General’s opinion has been published.  Such opinions are advisory and non-binding, but often give an indication of how the Court will decide.

Advocate General Wathelet recommends that Article 3(1) of the Copyright Directive must be interpreted so that:

• the posting on a website of a hyperlink to another website on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder does not constitute an act of communication to the public, as referred to in Article 3(1) (as decided in Svensson);
• it is not important that the person knows or ought to know that works have been made available on the linked website without the authority of the rightholder, or that such works had not previously been made available to the public with the copyright holder’s consent; and
• such a hyperlink which facilitates or simplifies users access to the works does not constitute a communication to the public under Article 3(1).

Interestingly, AG Wathelet states that the concept of a “new public” is not relevant in this case, as the copyright holder did not authorise the original disclosure.  However, facilitation of other user’s access to a site already accessible by them is not enough to constitute a communication to the public.  If followed, this may mark a shift away from the reasoning of the Svensson decision, which has been criticised in the commentary.

WAB comment

The Advocate General’s opinion in GS Media, if followed by the CJEU, would represent another step towards ensuring those using links in the normal day-to-day manner avoid liability for copyright violations.  Whilst copyright holders will not welcome remedies being closed off where a deliberate infringement of copyright is the subject and purpose of such a link, for day-to-day users of the internet and social media the principles would produce a sensible result in most cases.

The GeenStijl blog adopts a deliberately provocative editorial stance and its publisher’s actions seem to demonstrate an unusual lack of regard for the infringement of copyright in the images to which it linked.  However, it is also notable that the claimants had other remedies open to them: whilst the initial infringing party remains unknown and therefore difficult to enforce against, FileFactory and Imageshack took down the works when Sanoma contacted them, so the links on GeenStijl no longer worked.