GS Media/Sanoma: about linking to illegal content, CJEU C 160/15
The great fun of the Internet is that it is so easy to link to another website. Any restriction of that fun may violate fundamental rights such as the freedom of expression and information. Yet can one place a hyperlink to a website that contains copyright protected content – a film, a photo, a text? That might collide with the copyright owner’s fundamental right. Since the Svensson judgment we know that it is OK to place a link to copyright protected work that was put online with the rightholder’s consent. That content is already available to any Internet user, so the link does not reach a new public. Yet how is this if the hyperlink refers to content that was published without the rightholder’s permission? Could the rightholder stop the hyperlinker from doing so? In the case GS Media/Britt Dekker the CJEU finally shed its light. It needs to be established whether the hyperlinker knew or ought to have known that the hyperlink he posted provides access to a work illegally published. The CJEU expects from businesses (acting for profit) to check in advance whether the rightholder duly consented with the linked publication; from now on there is a (rebuttable) presumption of knowledge of the protected nature of the work and of the possible lack of the rightholder’s consent. However, as a general rule, people who don’t publish for profit will not know whether the linked content was published with or without consent (or even don’t know about the principle of protection at all). So they can post a link on Facebook or Twitter to that nice movie or story. But in a clear case the rightholder may substantiate why in this case the hyperlinker ought to have known that the linked content is ‘illegal’. Then it may be deemed a copyright infringement after all.
This is quite something. How often are links to other websites posted? From now on a business must check in advance, before posting a link, whether the lincked content is ‘legal’. The CJEU did not explain how such check may be executed in practice, nor how broad ‘for profit’ must be interpreted. Yet it is clear that GS Media should not have linked to the secret nude photos of Dutch celebrity Britt Dekker on the file sharing site Filefactory. Britt started quite something.
Maarten Haak