CJEU's GS Media copyright linking decision draws a line: ordinary internet user or commercial website?

But if the link was provided by someone acting for financial gain, then full knowledge of illegality must be presumed. The link would then amount to a communication to the public unless the presumption of knowledge were rebutted.     

Background

Sanoma, the publisher of the magazine Playboy, commissioned a photoshoot of the Dutch TV presenter Britt Dekker. In October 2011, hyperlinks to unpublished photographs from the shoot were made available by GS Media on its website GeenStijl, without the consent of Sanoma.

Sanoma brought a claim for copyright infringement against GS Media and the case was ultimately referred to the CJEU by the Dutch Supreme Court for a preliminary ruling. The key question for the CJEU was whether the provision of a link to a work made freely available online by a third party, without the consent of the rights holder, is to be considered an act of communication to the public.

The Dutch Court also asked if it was important that the person who posted the hyperlink was or should have been aware of the lack of consent by the rights holder, or whether the work previously had been made available to the public with the rights holder's consent.

These questions are of particular importance following the decision of the CJEU in Svensson (reported here) and the subsequent order in BestWater. In these cases the Court ruled that, although the publication of hyperlinks to a freely available work was an act of communication, there was no communication to the public. The rationale behind these decisions was that the rights holder had already taken into account all internet users when they authorised the initial online publication of the work to a freely available website, therefore the provision of hyperlinks did not communicate the works to a new public. This left open the question of whether there would be a new public where the initial communication was without the consent of the rights holder.

Advocate General's Opinion

In April 2016 the Advocate General ("AG") recommended that the CJEU answer the question in the negative. Interestingly, as part of his reasoning, the AG suggested that the Court should depart from its decision in Svensson and hold that the provision of hyperlinks to freely available websites was not an act of communication per se because the websites were already available without the intervention of the hyperlink (the position would be different where the hyperlink enable the circumvention of restrictions which limited access to a website).

In the alternative, the AG recommended that the "new public" requirement should not apply in circumstances where the initial communication of the work to the public was unauthorised.

Judgment

The Court reviewed the law on communication to the public as requiring both an "act of communication" and a "new public" (as held in Svensson) but also noted that an "individual assessment" should be applied in each case.

Therefore, applying an "individualised assessment" the Court reached the following conclusions:

1. Where a person acting not for profit publishes a link to a work available online without the consent of the rights holder,  it is necessary to take account of the fact that the person does not know, or cannot reasonably know, that the work has been published without consent.
   
   The intervention of the individual in these circumstances is not in full knowledge of the consequences of his conduct in giving access to a work illegally posted on the internet and so there is no act of communication.

2. In contrast, where the person knew or ought to have known that the link provided access to a work published illegally online (for example if they have been put on notice), or provides a link to circumvent restrictions which limit access to a work, the provision of that link would constitute a communication to the public.
3. Further, where hyperlinks are posted for profit the person posting the links should carry out the necessary checks to ensure that the work linked to is not illegally published. There is therefore a presumption that the posting of the link has been done with full knowledge of the protected nature of the work and the possible lack of consent to its publication online. In these circumstances, unless the presumption is rebutted, the posting of the link would be a communication to the public.

Commentary

GS Media confirms that Svensson applies only to the situation where the works linked to were made freely available with the consent of the rights holder.

In its decision the CJEU has pragmatically sought to distinguish between the posting of links by ordinary internet users (who cannot be expected to perform a detailed assessment of the works to which they are linking and whether or not they are published with consent) and those users of the internet who seek to profit by sharing works of other people or who knowingly and deliberately infringe copyright.

However the CJEU stopped short of finding that web links are not a communication to the public at all, thus seeking to protect rights holders against their use to circumvent access restrictions or to provide access to pirated or other unauthorised content.

The requirement for a person posting links to have knowledge that the content they link to is unauthorised is likely to lead to a practice of notice and take down similar to that currently operated by platforms relying on the hosting defence, but with the burden of acting on notices placed on users and websites rather than intermediaries.

It should be noted, however, that the GS Media decision concerns a factual scenario in which it is clear not only that the linked-to copy of the work was infringing, but the rights holder had not authorised publication of the work anywhere at all on the internet. There remains a question mark over the situation where the freely available linked-to copy is unauthorised, but the rights holder has authorised a copy to be made freely available elsewhere on the internet. The logic of Svensson is that in that situation the link cannot amount to a communication to the public. Some passages in the GS Media judgment suggest that that may still be the case. However this may require clarification in the future.