Tag Archives: Internet

Shrinking Linking? GS Media BV v Sanoma Media Netherlands

GS Media BV v Sanoma Media Netherlands BV and Others (Case C-160/15) CJEU

In 2014 the European Court of Justice took the opportunity not to break the Internet, but it left open the possibility that it might choose to do so in the future. That future has arrived.

Background

The CJEU addressed the legality of hyperlinking in 2014 in Svensson v. Retriever Sverige AB, Case C‑466/12 (13 February 2014). That case concerned a link to a newspaper article which was in itself was perfectly lawful. The article was in fact posted by the news publisher on its own website.

How could a link to a newspaper article on the newspaper’s own website amount to copyright infringement? The plaintiffs, journalist who wrote the articles and licensed them to the newspaper, argued that a link to a piece of content “communicates” that work “to the public.” Under European copyright law – see Article 3(1) of Directive 2001/29 – “communication to the public” is one of the exclusive rights that belongs to the rightsholder.

The CJEU held in Svensson that “for there to be an ‘act of communication’, it is sufficient … that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity.” On that loose definition the provision of clickable links makes a work ‘available’ and, therefore, is an ‘act of communication’.

But not all communications are created equal. The court reasoned that the link was not a communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Specifically the court said that users who navigate to the original newspaper site via the link “must be deemed to be potential recipients of the initial communication”—i.e., the newspaper websites initial voluntary communication to the public— and, therefore, users who follow a link to an open site are “part of the public taken into account by the copyright holders when they authorised the initial communication.”

Svensson v. Retriever Sverige AB, Case C‑466/12 (13 February 2014) Para 26-28

 The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.

 In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

In Svensson the European Court of Justice took the opportunity not to break the Internet, but it left open the possibility that it might choose to do so in the future. That future has arrived.

GS Media BV v Sanoma Media Netherlands BV and Others (Case C-160/15)

GS Media BV v Sanoma turns on some fairly simple facts. Playboy magazine in Europe had arranged to take photos of a popular Dutch TV personality. Before the photos appeared in the magazine (in December 2011) they were illegally leaked online. The defendant was not the leaker, it did not host the infringing material, it simply linked to that material. Thus the main question in the case is

GS Media BV v Sanoma Media Netherlands BV and Others (Case C-160/15)

Questions referred. 1(a)   If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29

Depending on the court’s decision, the legality of linking in the European Union may be under threat. It is not that all linking would be illegal or require permission, but a broad ruling in favor of the plaintiff in this case would mean that every link is potential source of copyright infringement unless you know for certain that the material you are linking to is authorized (by the copyright owner) for general public communication.

For additional comments and links, see Matt Schruers And Jakob Kucharczyk, “EU’S Highest Court To Weigh Whether Hyperlinking Will Remain Legal In Europe” Feb. 2, 2016 (Disruptive Competition Project (DisCo))