GS MEDIA BV V SANOMA MEDIA NETHERLANDS BV; PLAYBOY ENTERPRISES INTERNATIONAL INC.; AND BRITT DEKKER (CASE C-160/15)

The CJEU has ruled that, posting hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, will not constitute a ‘communication to the public’ within the meaning of Article 3(1) of InfoSoc Directive (2001/29), as long as the 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 the works. However, where such activity is carried out for financial gain, there will be a rebuttable presumption that the person posting the links knew that the works were initially published illegally. In this scenario, the links would therefore amount to a communication to the public.

The case in question, which originates from the courts of the Netherlands, concerned a dispute between Sanoma Media, the publisher of Playboy magazine, and GS Media, the operator of the Dutch website ‘Geenstijl’. In 2011 GS Media posted an article on its website which included a hyperlink taking users to an Australian website where photos of playboy model Britt Dekker could be downloaded. Sanoma Media asked GS Media to remove the link, however, GS Media refused. Sanoma Media subsequently brought an action before the Dutch courts claiming that, by posting the hyperlink, GS Media had infringed its copyright.

 

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The case reached the Supreme Court of the Netherlands and guidance was sought from the CJEU as to whether GS Media’s posting of a hyperlink to protected works (which were freely available elsewhere on the internet without the consent of the Sanoma Media) constituted a “communication to the public” within the meaning of Article 3(1).

The CJEU summarised the law on communication to the public as requiring both an "act of communication" and a "new public" (as held in Svensson and Bestwater) but also noted that an "individual assessment" should be applied in each case. It was said that this assessment should look at factors including, 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.

Taking all of this into account, the CJEU noted 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". It was therefore held as follows:

Where a person acting not for profit publishes a link to a work available online without the consent of the copyright owner, it is necessary to take account of the fact that the person does not know, or cannot reasonably know, that the work has been published without consent. In this scenario, there is no act of communication to the public.

However, where the person knew or ought to have known that the link provided access to a work published illegally online (e.g. if they were put on notice by the copyright holder) the provision of that link constitutes a communication to the public within the meaning of Article 3(1).

Where a person acting for profit publishes a link to a work available online without the consent of the copyright owner, there will be a presumption that the posting of the link has been done with full knowledge of the protected nature of the work and the possible lack of consent to its publication online. In these circumstances, unless the presumption is rebutted, the provision of the link constitutes a communication to the public.

Following this decision it is clear that the earlier CJEU decisions in Svensson and Bestwater concerned facts where the material linked to had originally been placed online with the consent of the copyright holder. This case provides clear criteria for cases where a link is provided to copyright protected material which has been posted online without the consent of the right holder. By introducing a requirement for knowledge, the CJEU appears to have effectively created a notice and takedown position for rightsholders to benefit from. However, where website operators are linking for profit, knowledge that the protected work is only available online without the owner’s consent will be presumed. How the website operator would rebut such a presumption is not yet clear.

As use was for profit and GS Media were on notice it can be expected that when this case goes back to the Dutch courts infringement will be established.

Link to  Judgment

Judgment Date:  08 SEPTEMBER 2016

 

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