Sep 122016

EU[Cross-Posted from TechnoLlama, Link (CC-BY-NC-SA)] A long-awaited case on intermediary liability and copyright infringement has finally been decided by the Court of Justice of the European Union (CJEU). The case is GS Media v Sanoma (C‑160/15), which involves Playboy pictures published online, and the liability of linking to said pictures.

Sanoma publishes Playboy magazine, which made public a set of pictures in 2011 taken by one of its photographers. GS Media operates a website called GeenStijl, which provides light-hearted news and content in Dutch. On October 27 2011, GeenStijl published links to pictures that belonged to Playboy, but they were hosted in a cloud file storage service in Australia. That same day, Sanoma sent a communication to have the pictures removed, and GS Media failed to comply. Another article was published with links to the files, and forum users in GeenStijl also published links to the infringing content. Sanoma sued for copyright infringement, and a court in Amsterdam sided with the claimants. GS Media appealed, and while the court decided that they were not hosting the content, the links affected Playboy’s and Sanoma’s rights. GS Media appealed again, and the Dutch Supreme Court referred several questions to the CJEU. The questions referred were:

‘1.      (a)   If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29?

(b)      Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way?

(c)      Is it important whether the ‘hyperlinker’ is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?

2.      (a)   If Question 1 is answered in the negative: If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?

(b)      In answering question 2(a), is it important whether the “hyperlinker” is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?

3.      Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?’

There are good news, and there are bad news. The bad news is that the CJEU has declared that under some circumstances, linking to infringing content can make the linker liable. The good news is that the test seems to be entirely subjective, but it also leaves out linking for non commercial purposes, and may be open to a lot of interpretation in the next years.

In the end, the decision is in large part framed by the nature of these questions and the previous cases dealing with linking, namely Bestwater and Svensson. In those cases, an important element was whether the infringing material had been made public by the owner, in which a link to the content would not be infringing. Based on that interpretation, the referring court asked whether linking to that content without authorisation would be a communication to the public. So far, so similar to Svensson and Bestwater. But the most important question in my opinion is 1(c), where the Dutch Supreme Court asks whether it’s important that the hyperlinker ought to be aware of the illegality of the content. This therefore introduces a subjective element to the equation.

The CJEU tries to maintain its position in Svensson and Bestwater by claiming that if a work has been communicated to the public by the owner, then things remain the same. But conversely, the court also declares that if the content has been published in another site without the owner’s consent, then there could be liability. But the court recognises that linking is an integral part of the Internet. They say:

“45. In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.

So, any limit to linking must be done with this concept in mind. Also, the court recognises that when linking to content, Internet users may not be aware that it is infringing, and most importantly, whether “the copyright holders of those works have consented to their posting on the internet”, or if the content has been adequately licensed.

So the court establishes the following guiding principle when linking:

“47. For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.”

As stated, this introduces the tricky subjective element of whether a person linking to content “does not know and cannot reasonably know” that the files are infringing. Moreover, in accordance to Svensson and Bestwater, if the content has been communicated already by the rightsholder and “there is not new public”, then there is no liability.

In the specific case under analysis, GS Media knew that the files were published in a hosting service without permission of the owner, as it had been communicated of that fact by Sanoma. The fact that it is also a for profit site meant that it breaks both parts of the new test, so it is a communication to the public, and therefore it can be made liable. The Court concludes:

” Having regard to the foregoing considerations, the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether 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 or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.”

So we have a mixed bag, but generally the result is positive. The decision should have little consequence for everyday Internet usage, particularly because most of us link to content not for profit, and for the most part we cannot be aware if a link is not authorised by the owner. The decision also seems to be quite friendly to search engines and other services that provide linking automatically, as these links are usually not done by a person, and therefore they do not meet the requirement that the linker knows or ought to have known that the content is infringing.

Those who may be affected are people who operate in commercial settings who may post to infringing content knowingly. Commercial sites should therefore endeavour to remove links when notified that the content is infringing.

We will have to see what effect the decision has, but at the moment, I am not expecting a major shift, but I’m willing to listen to other opinions.

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