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A Tangled Web – New Dangers Of Linking To Third Party Content Online

16 Sep 2016

Website designers and operators of websites beware.  The UK may have voted to leave the European Union (EU) on 23 June 2016 but, until such time as it actually does, the Court of Justice of the European Union (CJEU) remains the body which determines the meaning of EU law applicable in all EU Member States including the UK.  This includes Directive 2001/29, a law introduced by the EU to seek to harmonise copyright in the Information Society across the EU, otherwise known and referred to as the Information Society Services or InfoSoc Directive.

On 8 September 2016 the CJEU handed down a judgment which introduces significant changes in the understanding of what does and does not amount to an infringement of copyright online and, in particular, who can be held liable for the infringement. 

Following this judgment, the inclusion of a link on a website to unauthorised copyright works may, in certain circumstances, amount to infringement itself and copyright owners will be able to take action against those who include such links.

The Parties

GS Media operates GeenStijl, a popular website in the Netherlands which includes, according to information provided by that website, ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense’. 

Sanoma is the publisher of Playboy magazine in the Netherlands.

The Details

Photos of Dutch model, Britt Dekker, were taken for publication in the December 2011 edition of Playboy.  However, on 26 October 2011, the editors of the GeenStijl website received a message from a person using a pseudonym, which included a hyperlink to an electronic file hosted on the website Filefactory.com (‘the Filefactory website’), located in Australia and dedicated to data storage. That electronic file contained the photos at issue. On the same day, Sanoma asked GS Media’s parent company to prevent the photos at issue being published on the GeenStijl website.

Notwithstanding this, the following day, 27 October 2011, an article relating to the photos of Ms Dekker, entitled ‘…! Nude photos of … [Ms] Dekker’, was published on the GeenStijl website, which included part of one of the photos at issue and ended with the following words: ‘And now the link with the pics you’ve been waiting for.’ By clicking on a hyperlink accompanying the text, users were directed to the Filefactory website, on which another hyperlink allowed them to download 11 electronic files, each containing one of the photos.

Sanoma sent GS Media’s parent company an email demanding that it confirm that the hyperlink to the photos at issue had been removed from the GeenStijl website. GS Media failed to respond to that demand. However, at Sanoma’s request, the photos at issue appearing on the Filefactory website were removed.

On 7 November 2011, an article about the dispute between GS Media and Sanoma and others about the photos at issue was published on the GeenStijl website. That article ended with the following sentence: ‘Update: Not yet seen the nude pics of [Ms. Dekker]? They are HERE.’  That announcement was, once again, accompanied by a hyperlink to access the website Imageshack.us, where one or more of the relevant photographs could be viewed. The operator of that website, however, also subsequently complied with Sanoma’s request to remove them.

A third article entitled ‘Bye Bye Wave Wave Playboy’, which again contained a hyperlink to the photos at issue, appeared on 17 November 2011 on the GeenStijl website.  Forum users of that website then posted new links to other websites where the photos at issue could be viewed.

Finally, in December 2011, the photos at issue were published in Playboy magazine.

As a result of their actions, Sanoma and others including Playboy Enterprises International brought proceedings in the Netherlands claiming, in particular, that by posting hyperlinks to the photos at issue on the GeenStijl website, GS Media had infringed copyright in the photos.

The Issue Considered By The CJEU

Article 3(1) of the InfoSoc Directive provides that:

“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

The CJEU therefore considered whether, and in what possible circumstances, the posting on a website of 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 Article 3(1) of the InfoSoc Directive.

The Decision

The CJEU noted that, in two of its previous decisions, it had interpreted Article 3(1) of the InfoSoc Directive as meaning that posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ as covered by that provision including in circumstances when the content linked to appears within a frame.

The CJEU distinguished these earlier cases on the basis that in those cases the court intended to refer only to the posting of hyperlinks to works which had been made freely available on another website with the consent of the rightholder, the Court having concluded in these earlier cases that there was no communication to the public [by posting the link] on the ground that the act of communication in question was not made to a new public.

In light of this, the CJEU went on to hold that in order to establish whether the posting on a website of 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 Article 3(1) of the InfoSoc Directive it is necessary to determine:-

  1. 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 [in which case it does not constitute a ‘communication to the public’ and is not an infringement of copyright]; or
  2. whether, on the contrary, those links are provided for such a purpose (i.e. for financial gain), a situation in which that knowledge must be presumed [in which case it does constitute a ‘communication to the public’ and amounts to an infringement of copyright].

What This Means For Website Designers & Operators

In practice this means that people who provide links on their websites to unauthorised third party content, who are not pursuing a financial gain and who do not and could not reasonably know that the third party content was unauthorised, cannot be held liable for copyright infringement. 

However, should they subsequently be placed on notice that the third party content is unauthorised and they fail to remove the link(s) to such content then this will remove the protection afforded to them and they can be held liable for infringement.

In the case of websites which are operated for financial gain, the CJEU has now introduced a presumption that there is knowledge that the third party content is protected and of the possible lack of consent to publication of it on the internet by the copyright holder.  In such circumstances, and in so far as the 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’ and, as a result, amounts to an infringement of copyright.

What the CJEU has failed to clarify is what constitutes the pursuit of a financial gain.  In the case of GS Media, it is evident that its GeenStijl website is a commercial website operating for financial gain. However, in many cases it may not be so clear cut, for example in the case of websites which include online advertisements.  This will need to be determined in the future by courts within the EU Member States or possibly another referral to the CJEU.

In the meantime, everyone who operates a website should now be extra cautious when linking to third party content and, in the case of commercial websites operated for financial gain, it is to be expected that checks are conducted to ensure that the work(s) on the third party website(s) to which the hyperlinks lead are authorised and not published illegally.

 

DMH Stallard have a dedicated team of intellectual property specialists who can advise on this and other IP related matters. For more information contact:

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