The European Court of Justice (CJEU) has recently ruled that posting hyperlinks to copyright-protected works published without their author’s consent can, sometimes, constitute copyright infringement. The ruling aimed to strike a ‘fair balance’ between protecting the interests of copyright holders and the fundamental rights of internet users by specifying that only knowingly linking to infringing works, in a commercial environment, amounts to infringement. That infringement will only have occurred when the person publishing the works was both aware of the infringement and operating in a commercial environment.

However, critics warn that the wording of the directive leaves space for considerable uncertainty around its interpretation, which could easily lead to limiting the free flow of information on the internet.

The Playboy copyright case

The ruling was issued following a long legal battle between GS Media and Sanoma. Sanoma, the Dutch publisher of Playboy Magazine, filed a lawsuit against GeenStijl (a popular website in the Netherlands, operated by GS Media) in 2011, after the site posted links to leaked Playboy photos of TV personality Britt Drekker. The case ultimately went to the Dutch Supreme Court, which referred several questions to the CJEU. Most importantly, the EU Court was asked to determine whether the posting of hyperlinks online could amount to a ‘communication to the public’ under Article 3(1) of the EU Copyright Directive and, therefore, to infringement.

The Court asked for the opinion of Advocate General Melchior Wathelet, who concluded that hyperlinking to a website that has published unauthorised photos does not constitute copyright infringement, as hyperlinks ‘do not make these works available’. According to Wathelet, to rule otherwise would be to the ‘detriment of the proper functioning of the internet… as well as the development of the information society’.

Eventually, the CJEU took a more nuanced approach. It considered that it was relevant whether the hyperlinker ‘knew, or ought to have known’ that the hyperlink directed to a work published without the consent of the copyright owner; having such knowledge would make the act of linking to infringing content a ‘communication to the public’. Additionally, it added that where hyperlinks are ‘posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not legally published’. GS Media therefore committed copyright infringement, since, according to the Court, it is ‘undisputed that it provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorised the publication of those photos on the internet’.

Practical implications – a ‘blow to press freedom’?

The decision was met with controversy from lawyers and media outlets, many of whom shared the Advocate General’s concerns regarding its impact on the proper functioning of the internet. In a statement released after the ruling, GS Media’s lawyer called it a ‘blow to press freedom’. He warned that it ‘poses problems to all online media organisations in Europe’, as it is often impossible to ascertain the copyright status of all information to which they link. Tom Collins from Stevens&Bolton LLP agreed that the ruling will ‘inevitably raise some practical difficulties’ for online businesses.

Furthermore, according to law firm Taylor Wessing, it is not clear what the Court meant by carrying out ‘necessary checks’, resulting in uncertainty about what website operators are expected to do (and whether there is a positive legal duty for them to carry out these checks).

The Court recognised in its judgment that ‘it may be difficult… for individuals to ascertain whether the works involved are protected’ by copyright and it aimed to primarily target commercial businesses by introducing the ‘for profit’ condition. However, it is unclear whether, for example, personal blogs hosting paid advertising could be considered as operating ‘for profit’. This would have a far-reaching impact, negatively affecting a much wider range of online content creators.

The precise effect of the decision will depend on how it plays out in practice, but courts around the EU will likely be grappling with the various issues raised.