European Court of Justice: hyperlinks to unauthorized content may infringe copyright

• Author: Tobias Cohen Jehoram
• Position: Partner, De Brauw, Blackstone, Westbroek, Amsterdam, Netherlands

The case

The case concerned a complaint by the Sanoma, the publisher of the Dutch edition of Playboy, about a posting by Geen Stijl (GS) regarding as-yet-unpublished pictures of Dutch reality star Britt Dekker. In its post, GS provided a hyperlink to an Australian website where some of the copyright-protected Playboy pictures could be downloaded. Sanoma argued that the mere posting of this hyperlink constituted a “communication to the public” protected by its copyright, and that GS’s publication of the hyperlink could therefore be prohibited. GS argued that hyperlinking did not fall within the author’s exclusive right, because the ECJ did not consider linking to legal content an infringement since there was no communication to a “new public” (Svensson and Bestwater). In 2015, the Dutch Supreme Court decided to refer preliminary questions to the ECJ.

The ECJ’s answers in Sanoma Media Netherlands BV et al v GS Media show that a hyperlink’s legal status is ambiguous. Under European copyright law, hyperlinking to illegal content does not in principle qualify as a “communication to the public”. However, when the person posting the hyperlink has or should have had knowledge of the illegal character of the content hosted by a third party, hyperlinking will fall within the scope of the author’s exclusive right and can therefore be prohibited. The permissibility of a hyperlink thus has to be decided on the basis of an individual assessment. In that context, the ECJ held that it will be particularly relevant whether or not a hyperlink is posted by a commercial party pursuing financial gain. As the Court felt that commercial parties can be expected to carry out the necessary checks before posting a hyperlink, they are presumed to be fully aware of the legality of the third-party content they link to.

...