Linking to illegally published work is a ‘communication to the public', rules CJEU

If the link is provided for profit, it must be presumed that the person posting it would undertake appropriate steps to find out whether it was illegally published, the CJEU, Europe's highest court, said.

Intellectual property specialist Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said: "The Court has confirmed previous case law and made clear that owners of websites cannot be ignorant of intellectual property rights. While IP rights must be weighed in the balance with freedom of expression and the public interest, no single factor is determinative. This is good news for rights holders as it places the burden on website operators to justify why they thought they were okay to publish the work in the first place."

The CJEU had been asked by the Supreme Court of the Netherlands to rule on whether every act of communicating a work to the public has to be authorised by the copyright holder.

The Supreme Court asked the question in relation to a case between GS Media, a Dutch publisher and Sanoma, the publisher of Playboy magazine. GS Media operates a news website in the Netherlands called GeenStijl. In 2011, GeenStijl included an article with hyperlinks to an Australian website which had published photographs of Netherlands television presenter Britt Geertruida Dekker. The Australian site had used the photographs without the permission of the copyright holder, Sanoma.

Sanoma asked GS Media to remove the links, but it refused. Sanoma then asked the Australian website to remove the photographs, which it did. GS Media then changed its links to point to another site where the photographs were still available. When those, too, were taken down at Sanoma's request, users on the GeenStijl forum posted further links.

Sanoma said that GS Media had infringed its copyright through these links.

Under EU legislation member states must give authors the right to authorise or prohibit any communication to the public of their work, the CJEU said.

"At the same time, that directive seeks to maintain a fair balance between, on the one hand, the interests of copyright holders and related rights and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information, as well as the general interest," it said.

Following earlier case law, the CJEU said that the concept of communication to the public needs to be assessed on a case by case basis. This assessment should look at whether the person publishing the link knows the status of the work they have linked to, how many people are likely to see the link, and whether the link is made in order to make a profit.

The internet is of particular importance to freedom of expression, and hyperlinks are important to its operation and to the exchange of opinions and information, the CJEU said. In addition, it said, it "accepts that it may prove difficult, in particular for individuals who wish to post such links, to ascertain whether the works involved are protected and, if necessary, whether the copyright holders of those works have consented to their publication on the internet".

Therefore, if someone posts a link with no intention of making a profit and can show that they did not know, and could not reasonably know, that the work was published without consent, then it would not constitute 'communication to the public'.

However, if it is established that this person did know, or should have known, that the work was illegally published, "for example owing to the fact that he was notified thereof by the copyright holders", then it is a communication to the public, the CJEU said.

The same is true if the link lets readers circumvent measures in place to restrict access to the linked-to site, it said.

Finally, when a link is posted for profit it automatically constitutes a communication to the public, and the person making the link is expected to have checked whether the work is illegally published, the CJEU said.

"In the present case it is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorised the publication of those photos on the internet. It appears from the facts, as stated in the Hoge Raad’s request for a preliminary ruling, that 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," it said.

GS Media therefore effected a ‘communication to the public’ by posting the links, it said.