Europe’s highest court has ruled that web hyperlinks can be posted without a copyright owner’s consent so long as they are not being used for financial gain.
In a ruling that has ramifications across the single market, the Court of Justice of the European Union said hyperlinking is not a ‘communication to the public’ so long as there is no financial incentive and the linker was unaware that the linked-to work infringed copyright.
The case, GS Media v Sanoma, stems from the Dutch Supreme Court, which asked the CJEU to consider whether the EU’s copyright directive considers linking to a third-party website as a communication to the public and, as a result, infringement of copyright.
GS Media operates a gossip website called GeenStijl. In 2011, it published a headline saying it had photographs of model Britt Dekker (pictured).
The article included a hyperlink that led to an Australian website where the photos could be downloaded in a zip-file format. The pictures were owned by Playboy publisher Sanoma.
Despite Sanoma’s demands, GS Media refused to remove the link.
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 their interests and that of freedom of expression.
‘In the present case it is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit,’ the court said in its judgment.
It added: ‘GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication. GS Media therefore effected a communication to the public.’
Tom Collins, associate at commercial firm Stevens & Bolton, said the decision strikes a ‘fair balance’.
‘This will avoid a regime whereby internet users innocently posting hyperlinks are vulnerable to copyright infringement, such as on social media sites,’ he said.
He added that for those sharing hyperlinks in a commercial context, there will be an expectation to carry out checks to ensure the content has not been illegally published.
‘This will inevitably raise some practical difficulties for some online businesses,’ he said.
Adam Rendle, senior associate at international firm Taylor Wessing, said the decision will be welcomed by copyright owners as it offers ‘some protection against commercial websites’.
However, he added: ‘In contrast, it seems that individuals who post hyperlinks to material published illegally, but who are not seeking a profit, will not be infringing copyright unless it can be proven they were aware of the illegality.
‘The breadth of circumstances in which posting links is considered to be done for financial gain will be key to determining how much of an impact this ruling has on day-to-day online activities in a wide range of industries.’