Hyperlinking and copyright: be careful

Is posting a hyperlink that gives access to a copyright protected work allowed or not? Today, the European Court of Justice gave its ruling in the GeenStijl/Sanoma case. The answer is not a simple ‘yes’ or ‘no’: the Court states that it depends on the circumstances of the case. Those circumstances include, in particular, the ‘intention’ of the person or corporation that placed the hyperlink. If and when that person or corporation is aware of the fact that the work to which the hyperlink leads, is a work protected by copyright that is illegally published (without permission of the copyright holder), this will constitute copyright infringement. If the hyperlink is placed to gain profit, one should be aware of the possible copyright issues that may arise and should take steps in order to ensure that the work concerned is not illegally published.

The case

In 2011, GeenStijl published an article which contained a hyperlink to an Australian website on which a zip-file containing the Playboy pictures of Britt Dekker – a Dutch celebrity -  could be found. Sanoma, the publisher of Playboy and the copyright holder, did not give permission to publish the pictures and requested GeenStijl to remove the pictures. GeenStijl refused, and when the pictures were removed from the Australian website, GeenStijl posted a new hyperlink to another website on which the photos also could be found. Internet users of the GeenStijl forum then posted new links to the other website on which the photos could be found. The question was whether GeenStijl did or did not infringe Sanoma’s copyrights. Earlier case law already made clear that posting a hyperlink to works freely available on another website does not constitute a ‘communication to the public’. And for a finding of copyright infringement, there needs to be such a communication. However, in the GeenStijl/Sanoma case, it was clear that the photos were placed without permission of the rights holder, and the question was whether that was relevant. The ECJ states that it is relevant. If the rights holder did not give permission for the first publication (on the website to which the hyperlink leads) and the person who posts the hyperlink is aware of that fact, posting the hyperlink will be considered a copyright infringement. If and when the hyperlink was posted without pursuing a profit and that person is not aware (and couldn’t be aware) of the fact that the hyperlink leads to works illegally published works protected by copyright, posting the hyperlink will not be considered a copyright infringement. GeenStijl, however, was aware of the fact that Sanoma did not give permission for publishing the pictures on the Australian website (and later the other websites). In addition, GeenStijl did pursue a profit. Taking the aforementioned into consideration, GeenStijl did infringe the copyright of Sanoma.

Impact of the ruling

The ruling of the ECJ shows that determining whether posting a hyperlink constitutes copyright infringement, should be reviewed on a case-by-case basis. Two aspects are of particular importance: whether the posting of the hyperlink was done to pursue a profit and whether the person placing the link is aware of the fact that the hyperlink leads to a website containing illegally published works (such as photos or news articles). This means that companies will have to be careful with hyperlinking: placing a hyperlink by a company will most likely always be perceived as an act to pursue profit. In addition, a professional party should be aware of the fact that the publication of the copyright protected works on the other website, might have been an illegal publication (a publication without permission of the rights holder. Even more so: the Court states that, when posting a hyperlink to pursue a profit, steps should be taken to ensure that permission has in fact been given. In order to avoid copyright infringement claims, do not hyperlink unless you have made certain that the rights holder gave permission for the publication of its work. This will be quite burdensome in practice, but the ruling shows that it is the safest way. In other words: think before you hyperlink! This article was written by Lenneke van Gaal