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EU Court: Hyperlinking may be a Copyright Violation

 

Dr. Marcus Dittmann (Rechtsanwalt/Attorney at Law)

 

Last updated 27 September 2016

 

In September 2016 the European Court of Justice handed down a judgement which many observers believe could endanger the freedom of placing hyperlinks, thereby compromising a core functionality of the Internet and free speech (European Court of Justice, judgement of 8 September 2016 in Case C 160/15 - GS Media vs. Sanoma/Playboy vs. GeenStijl, see full text of the judgement here).

 

The case was about nude photographs taken from Playboy magazine which had been illegally uploaded by an unknown third party to a file hoster. The Dutch news blog website GeenStijl placed a hyperlink to the image file in one of its articles. When Playboy succeeded to have the file hoster take down the image file, GeenStijl replaced the link with another link to another site where the image was hosted equally illegally. GeenStijl defended its action by claiming that it did not actually host the image itself, that it had only placed a mere hyperlink, and that it could not positively have known – and could not be expected to know – whether the image was legitimately online or not.

 

The judges held that under these circumstances the act of placing a hyperlink, while normally neutral, could in fact be deemed an independent act of making copyright-protected material publicly available in the terms of EU copyright law (EU Copyright Directive 2001/29/EC, Article 3(1), ‘communication to the public’).

 

The key consideration, according to the court, is whether the hyperlink is placed purposefully for commercial reasons, in the pursuit of financial gain, for profit. If this is the case, the court ruled, it must typically be presumed that the commercial actor is aware or can reasonably be expected to know that the linked publication is illegal, if this is the case. The judges thus dismissed GeenStijl’s defense.

The operative paragraphs of the ruling are these (paragraph 51 and 55):

[51] “(…) when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, (…) the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.”

 

[55] “(…) 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.

In effect, the ruling means that anyone placing a hyperlink on third party content which may be copyright protected and made accessible without the rightholder’s consent now runs the risk of being held accountable and liable for a copyright violation of his own.

 

The ruling thus strengthens the position of copyright holders in their never-ending fight against copyright violations on the Web. They now may have leverage against such online platforms and websites that link to copyright material which is hosted elsewhere, on third party websites, without actually hosting it on their own servers, if such platforms and websites are commercial enterprises.

 

On the other hand, the ruling introduces a significant risk into an online world in which until now most people have assumed that placing hyperlinks as such was perfectly safe and harmless and a part of free speech.

Users should exercise extra care when selecting their hyperlinks from now on.

 

This ECJ ruling is important because it will inform the interpretation of national copyright law in the EU member states under the aspect of harmonization under the EU Copyright Directive 2001/29/EC.

 

That said, there already have been several court rulings in the past on the national level which specified that Internet users may be held accountable for placing hyperlinks to third party content under certain circumstances.

 

The German Federal Court of Justice (Bundesgerichtshof, BGH) has held repeatedly that the operator of a website may be liable for a hyperlink if it leads to a website with content that is obviously illegal (a) if through the manner of presentation he adopts it as his own, or (b) if the material itself is easily and readily recognizable as illegal, or (c) if he has been explicitly informed about the illegality and still keeps the link (see for example BGH, Urteil vom 18.06. 2015, Az. I ZR 74/14 - Haftung für Hyperlink; BGH, Urteil vom 18.10.2007, Az. I ZR 102/05 - ueber18.de; BGH, Urteil vom 12.11.2009, Az. I ZR 166/07 - marions-kochbuch.de).

 

The German courts recognize as an exception certain situations in which the link is made for journalistic purposes, for aiming to promote the freedom of opinion (e.g. BGH, Urteil vom 19.05.2011, Az. I ZR 147/09 – Coaching-Newsletter), though there may be a grey zone of uncertainty.

 

The uncertainty has now grown with the ECJ ruling.

 

If you have any questions please feel free to contact:

-        Dr. Marcus Dittmann

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