The article in question included a hyperlink that led to an Australian website where photographs could be downloaded in a zip-file format. The photographs were owned by Playboy Publisher, Sanoma.
Despite Sanoma’s demands, GS Media refused to remove the link.
In its judgment, the CJEU said EU member states should give copyright owners the exclusive right to authorise or prohibit communication of works, but that there should be a ‘fair balance’ between their interests and that of freedom of expression.
‘In the present case it is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit,’ the Court held in its judgment.
It added: ‘GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication. GS Media therefore effected a communication to the public.’
The decision seems to strike a ‘fair balance’ and will avoid a regime whereby internet users innocently posting hyperlinks are vulnerable to copyright infringement, such as on social media sites.
The decision therefore gives some protection against commercial websites.
It is important that, when sharing hyperlinks in a commercial context, checks are carried out to ensure that the content of the hyperlink has not been published illegally.
However, it seems that individuals who post hyperlinks to material published illegally but who are not seeking a profit, will not be infringing copyright unless it can be proved that they were aware of the illegality.
Europe’s highest court has ruled that web hyperlinks can be posted without a copyright owner’s consent so long as they are not being used for financial gain. In a ruling that has ramifications across the single market, the Court of Justice of the European Union said hyperlinking is not a ‘communication to the public’ so long as there is no financial incentive and the linker was unaware that the linked-to work infringed copyright. The case, GS Media v Sanoma, stems from the Dutch Supreme Court, which asked the CJEU to consider whether the EU’s copyright directive considers linking to a third-party website as a communication to the public and, as a result, infringement of copyright. GS Media operates a gossip website called GeenStijl. In 2011, it published a headline saying it had photographs of a model, Britt Dekker.