Hyperlinking copyrighted work lawful if not for profit

Owners of commercial websites face uncertainty following a landmark European Court of Justice (ECJ) decision on hyperlinking, which lawyers fear could have a “chilling effect”.

In GS Media (Case C-160/15), the ECJ ruled that hyperlinking to a copyrighted work published online without the owner’s consent is lawful as long as it is not for financial gain. The case arose after Sanoma, the Dutch publisher of Playboy magazine, commissioned a photoshoot with Britt Dekker, a reality TV star, and the photos were leaked to an Australian file sharing site. GS Media posted a hyperlink to a page on the Australian site where they could be downloaded. GS then refused Sanoma’s request to remove the hyperlink, and copyright infringement proceedings were brought.

The ECJ held that hyperlinking did not amount to a “communication to the public” of that work, as long as the person posting had no knowledge that the work was published illegally. However, there will be a rebuttable presumption that the person posting the link did have knowledge of its illegality where they posted the hyperlink for financial gain, as they would be presumed to have carried out the “necessary checks”.

Mark Owen, partner at Taylor Wessing, warned of a potential “chilling effect”. He said the rebuttable presumption was likely to be problematic. “On a basic level, national courts may struggle to import a knowledge test into cases relating to primary copyright infringement, since the question of intent (or negligence) is not usually relevant at the stage of considering whether there was an act of infringement in the first place”. Establishing “financial gain” raised practical difficulties where, for example, a personal website or blog carried some paid advertising but on a small-scale. It was also difficult to know what the ECJ meant by “necessary checks”. Tom Collins, associate at Stevens & Bolton, said: “For those sharing hyperlinks in a commercial context, there will now be an expectation to carry out checks to ensure that the content has not been illegally published. This will inevitably raise some practical difficulties for some online businesses.”