GS Media Judgement on hyperlinking

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The CJEU recently delivered a judgement we all had been waiting for, GS Media v Sanoma Media Netherlands and Others (C-160/15). Just to jog your memory here are the facts of the case:

The publisher of Playboy Sanoma had commissioned a photo shoot of the model/TV presenter Britt Dekker. The unpublished photos from the photo shoot were made available by GS Media on its website GeenStijl, without any authorization from the copyright holder. Sanoma filed a copyright infringement suit against GS Media and the matter went from the Dutch Supreme Court to CJEU. The key question to be answered by the CJEU was -whether providing a link to a work made freely available by a third party without the consent of the copyright holder amounted to communication to the public. Additionally, another important question posed was whether knowledge on the part of the person posting the links with respect to the lack of authorization of the copyright holder was important or not.

The decisions prior to GS Media, such as Svensson and BestWater said that although hyperlinking to freely available works was an act of communication, there was no communication to the public. Reason? The first communication of the work by the right holder was targeted to all the users of the internet and therefore the subsequent communication did not amount to communication to a new public. However, the Court did not address whether it would amount to communication to a new public if the first communication itself was done without the copyright holder’s consent.

In its decision the CJEU firstly stated that the concept of ‘communication to the public’ requires an individual assessment. In this regard it also stated that “such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another”.

 Secondly, where a person provides links to works already published on the internet without the right holder’s consent, but not for purposes of profit it is important to know if he was aware of the fact that such consent was not obtained. The CJEU stated:

 “……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.”

Further, with respect to one who is posting links for commercial purposes the CJEU stated:

…. 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, 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’….

Clarifying the law of hyperlinking the CJEU ruled:

“…..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.”

Sources- 1, 2, 3

 

Authored By- Anchita Sharma