New success for hypertext links?

web-886843_640As content sharing on the Internet has become common practice for individuals as well as professionals (Facebook, Twitter, Pinterest, LinkedIn), the Court of Justice of the European Union gradually develops relevant jurisprudence on the matter of hypertext links.

When a hyperlink to copyright-protected content is made available online by the owner of the copyright (or with his/her authorization), it does not constitute an act of “public communication” as it does not address a “new public”.

What if the online content has been published without the authorization of the rights holder?

The Advocate General of the ECJ delivered his Opinion on this issue to the ECJ in the GS Media case C-160/15. The dispute is between Sanoma, editor of Playboy magazine, and GS Media, operator of the website GeenStijl.

GS Media published a hyperlink on the GeenStijl website directing viewers to an Australian site where Sanoma’s photos were published without its consent. Despite demands from Sanoma, GS Media refused to remove the hyperlink in question. When the Australian website removed the photos upon Sanoma’s request, GS Media published a new hyperlink to another website on which the same photos could be seen, published again without the consent of Sanoma. That site also complied with Sanoma’s request to remove the photos. Users of the GeenStijl forum posted new links to other websites where the photos could be viewed. Sanoma then sued GS media for copyright infringement.

The case escalated all the way to the Hoge Raad der Nederlanden, the Supreme Court of the Netherlands, which considered that it could not infer from the current ECJ case law that there was “communication to the public” when content is made freely available online without the authorization of the copyright owner. The European Court of Justice has therefore been asked to give a preliminary ruling.

Isn’t there a risk of “communication to the public” when placing a hyperlink to protected content without the authorization of the copyright owner?

The Advocate general of the ECJ, Melchior Wathelet, published his Opinion on April 7, 2016. The Opinion of the Advocate General is not binding on the Court of Justice but intends to propose a legal solution to the Court. According to the Advocate General, once the protected content is freely accessible on the Internet, hyperlinks placed on a website cannot be classified as an act of communication within the meaning of the Directive 2001 on the harmonization of certain aspects of copyright and related rights in the information society. Whilst the photos were possible to find, this was not necessarily easy. The photos were “freely accessible” on third-party sites. Initial “communication to the public” had already taken place and as a result, the hyperlinks only allow users a faster and more direct access to the content. The hypertext link thus only facilitates the discovery of websites where those photos are already published.

The actual act of “public communication” is made by the person who effected the initial communication. The hypertext link only leads to a website where the photos are already published without the authorization of the copyright holder. Consequently, hyperlinks cannot be classified as “acts of communication”. The intervention of the owner of the site who inserts the link is not indispensable for the photos in question to be made available to Internet users. In this case, GS Media’s intervention was merely to reiterate the content already online and is not indispensable to the provision of these photos being made available on the Internet. Moreover, the Advocate General considers that GS Media’s intentions and the fact that it knew or should have known that the initial communication of the photos had not been authorized by Sanoma are not relevant. Thus, the posting of a hyperlink to a website which published photos without authorization does not in itself constitute a copyright infringement.

An approach in line with the European case law

The approach of the Advocate General is in line with the ECJ case-law that gradually develops its decisions on the legal status of hyperlinks. In the Svensson case, judgement of February 2014, the CJEU had ruled on the legal status of a hypertext link. The Court considers that a website can place a hyperlink to protected content freely accessible on another website, without the authorization of the copyright holder. The creation of an Internet link which redirects a user to a protected content authorized by the copyright holder does not constitute “communication to the public” since there is no “new public”. Indeed, the work has already been communicated to the public beforehand. The hyperlink only “directs” towards this work.

In an Order of the Court of October 2014 in the BestWater case, the CJEU adopted the same legal reasoning concerning the hyperlinks by using the framing method. The CJEU held therefore that there was no “communication to the public” if the content concerned is neither directed at a new public nor communicated by using specific technical means different from that used for initial communication.

Please read our article “European Union: the legality of a YouTube video integrated into a third party site (Framing)”.

A surprising French amendment to ban hyperlinks

In France, an amendment to the bill for a digital Republic was filed by two MPs who would like to see a large number of hypertext links to disappear. The amendment is not in line however with the Svensson case which established the principle that clickable links to copyrighted works do not need authorization from the owner. As for the amendment, it intends to ensure that all hyperlinks are subject to authorization prior to publishing protected content.

Hyperlinks: central to the functioning of the Internet

As the Advocate General emphasized in his Opinion, interpreting this matter in the wrong way would entail far-reaching consequences in terms of the responsibilities of Internet stakeholders. It is important to strike a balance between disseminating information and enforcing copyright law. Any other interpretation of the notion of “communication to the public” would infringe one of the principal objectives of the Directive, namely the development of a European information society.

Furthermore, the Advocate-General notes that the above, would considerably impede the functioning of the Internet. Users visit sites and create hyperlinks to access such content. Internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the Internet was done with or without the consent of the copyright holder. If Internet users risk liability for copyright infringement every time they place a hyperlink to content which is freely accessible on another website, they would be much more hesitant to post these links.

Until then, don’t be concerned, the trend is pushing towards the unrestricted use of hyperlinks!