It said the internet was “of particular importance to freedom of expression and of information and that hyperlinks contribute to its sound operation” – but added that certain parties had a greater responsibility to avoid posting links to illegally published content.
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“If commercial media companies – such as GeenStijl – can no longer freely and fearlessly hyperlink it will be hard to report on newsworthy new questions, leaked information and internal struggles and unsecure networks in large companies”, it said.
In April, the CJEU’s Advocate General, Melchior Wathelet, opined that hyperlinking was legal in all the situations raised by the Dutch court, whether or not the images were published without permission – but his view was only advisory, and not binding on the CJEU.
Given the above, the Court found that knowledge of the potentially infringing status of a work plus commercial motivation play a pivotal role in determining whether a “communication to the public” has taken place.
The EU’s top court has come under fire after backing Playboy’s fight to stop a website posting links to images published without permission.
When posting links for profit, the ECJ said that it expects people to carry out the “checks necessary” to ensure that work concerned has not been illegally published.
Therefore it could be hard for individuals posting such links to know if they are doing it legally, the court said. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet.
It concluded that hyperlinks to images published without permission should be considered a communication to the public “when those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website”.
But now the court has ruled that GS Media’s posting of the links was a “communication to the public” – making it subject to the stated checks and balances regarding copyright. Pursuant to an EU Directive, every act of communication of a work to the public has to be authorised by the copyright holder.1 However, the Hoge Raad notes that the internet is overflowing with works published without the rightholder’s consent.
In a statement on its website, GS Media said: “The outcome now, is that you always run the risk of being sued, just for a hyperlink”.
GS Media said after the ruling: ‘If commercial media companies – such as GeenStijl – can no longer freely and fearlessly hyperlink it will be hard to report on newsworthy new questions, leaked information and internal struggles and unsecure networks in large companies’.
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“The struggle for the survival of the free internet, including hyperlinks, today runs on a hefty blow”.
