The matter at hand
GS Media operates the news and entertainment website GeenStijl, which provides, according to that website, “news, scandalous revelations and investigative journalism with light-hearted items and wacky nonsense”. GeenStijl is one of the 10 most visited news websites in the Netherlands.
On 26 October 2011, the editors of GeenStijl received a message from a person using a pseudonym, with a hyperlink to an electronic file hosted on the website Filefactory.com containing as yet unpublished nude photographs of Dutch reality star Britt Dekker which had been made for Playboy, a magazine published by Sanoma. The next day, an article entitled “…! Nude photos of Britt Dekker” was published on GeenStijl, together with a hyperlink to the electronic file containing the photos.
Sanoma subsequently brought proceedings against GS Media, claiming that by publishing the hyperlink, GS Media had infringed the photographer’s copyright and acted unlawfully towards Sanoma. The District Court in Amsterdam upheld Sanoma’s claims, but that decision was set aside in appeal, after which Sanoma appealed to the Dutch Supreme Court.
Bearing in mind that the ECJ had already held in Svensson (C-466/12) that the posting of a hyperlink to a protected work published on another website with the consent of the rightholder, does not constitute a communication to the public within the meaning of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the Supreme Court asked the ECJ, in essence, whether this rule also applies to hyperlinks to protected works which have been made available to the general internet public without the consent of the rightholder.
The judgment of the ECJ
First of all, the ECJ recalls that hyperlinking to a so-called legal source does not constitute a communication to the public, because such hyperlink does not reach a ‘new’ public, that is to say a public that was not already taken into account by the copyright holder when he authorized the initial communication to the public of his work. Where a copyright holder has made his work freely available on a website, he must, after all, be considered to have taken all internet users into account. Consequently, a hyperlink to that work does not reach a public not already taken into account by the copyright holder (paragraph 42).
Where it concerns a hyperlink to an illegal source, however, it cannot be said that the copyright holder has already consented to the public availability of his work on the internet. In such a case, therefore, the hyperlink does reach a new public (paragraph 43).
Secondly, the ECJ assesses whether the posting of a hyperlink to an illegal source constitutes an ‘act of communication’, which requires that a person “intervenes, in full knowledge of the consequences of [his] action, to give access to a protected work” (paragraph 35).
In this regard, and considering that “the internet is (…) of particular importance to freedom of expression and of information (…) and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network”, the ECJ notes that “it may be difficult, in particular for individuals who wish to post such links, to ascertain whether [the] website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet” (paragraphs 45 and 46).
Therefore, it is 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” (paragraph 47). In other words, account must be taken of the fact that such a person “does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet” (paragraph 48).
Obviously, this is different “where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders” (paragraph 49).
As to the posting of a hyperlink by a person who does pursue a profit, the ECJ holds that “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, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’“ (paragraph 51).