In a decision that’s already controversial, the Court of Justice of the European Union (CJEU) has ruled in favor of copyright owners and against hyperlinks.
The CJEU determination qualified, raises the strong possibility that publishers linking to infringing third party sites may also be liable for infringement.
The CJEU verdict amounts charge to judicial lawmaking and is an assault on the free flow of information online, contrary to the way the net has operated to date.
In addition, it puts a burden of investigation on the linking publisher to ascertain whether the connected content infringing or is authorized. In some events that may be easy to ascertain but in many others it won’t be.
The facts of the current case were egregious but the law is awful for the web.
The copyrighted material at issue in the case, GS Media vs Sanoma, were pictures (presumably nude) of Dutch celebrity Britt Dekker, which were possessed by the Dutch edition of Playboy, published by Sanoma. Here are the facts as clarified by the CJEU press release:
In 2011, GS Media published an article and a hyperlink directing spectators to an Australian website where pictures of Ms Dekker were made available.
GeenStijl printed a brand new post that also featured a hyperlink to another web site on which the photos in question could be seen, when the pictures were removed by the Australian web site at Sanoma’s request. That site complied also with Sanoma’s request that it remove the photos.
Internet users seeing the GeenStijl newsgroup then posted new links to other sites where the photos could be viewed.
To put it differently, the publisher (GS Media) knew of the illegality of the linked content and repeatedly re-linked to it on different websites. There was no question of the intentional nature of its conduct.
The EU requires that “every act of communicating of a [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][copyrighted] work to the people has to be authorised by the copyright holder” (with a few exceptions).
The case apparently turned on the problem of “communicating ” which is something of a legal conclusion rather than a factual query, to the public. The bottom line seems to be, nonetheless, when a for profit publisher links to infringing content with knowledge of its illegality that publisher will be held liable.
According to the court’s release (also below):
When hyperlinks are posted for gain, it may be anticipated that the individual who posted such a link should perform the checks needed to ensure the work concerned is not illegally published.
In such situation, and in so far as that assumption is not rebutted, the action of posting link that is clickable to a work published on the net represents a ‘communicating to the public’.
There appear to be two connected factual questions which will establish liability in the future:
Whether the linking publisher is for-profit — that appears to impose a weight of investigating the legality (authority) of the underlying material
Whether the publisher that was linking knew of the illegality of the content on the other side of the link.
The decision has obvious implications for search engines. Arguably it will impose an important weight on Google, Bing, Yandex, Yahoo or any other “search engine,” accessible in Europe, to ascertain whether websites indexed and presented in search results comprise unauthorized content.