On 7 April 2015, the Dutch Supreme Court referred the case GS Media/Sanoma to the ECJ (Footnote1).  Following Svensson (Footnote2) and BestWater (Footnote3), it appears that the ECJ needs to answer preliminary questions regarding linking once again. The Dutch Supreme Court found that it is not clear whether linking to content that is published without the consent of the rightholder constitutes a ‘communication to the public’ (Footnote 4).

In short the case is about three photos from a Playboy photo-shoot with the Dutch celebrity Britt Dekker. The Dutch online publisher “GeenStijl” published a link to these three photos that were available on Filefactory. Until then, the photos were only available on a very specific URL and users could only visit these photos in case they would type this exact URL in their browser. Although the photos were published without any restrictions on Filefactory, the links from GeenStijl made it a lot easier to visit them.

Sanoma, the publisher of the Playboy magazine, lodged proceedings against GeenStijl. The court in first instance granted an injunction against GeenStijl based on copyright infringement (Footnote5).  On appeal, the Amsterdam Court of Appeal ruled that GeenStijl did not infringe Sanoma’s copyrights, since the pictures were already freely accessible on Filefactory. However, the Court of Appeal also found that GeenStijl committed an unlawful act by encouraging the internet public to view the photos (Footnote6).  Both GeenStijl and Sanoma lodged an appeal to the Supreme Court.

Because the Supreme Court finds it unclear whether linking to a work that is published on the internet without permission of the rightholder constitutes a ‘communication to the public’, the Supreme Court has decided to stay the proceedings and to refer the following questions to the ECJ for preliminary ruling:

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?

1(b)    Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way?
1(c)    Is it important whether the ‘hyperlinker’ is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?

2(a)    If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?

2(b)    In answering question 2(a), is it important whether the ‘hyperlinker’ is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?

3.    Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?

Although the ECJ already provided clarity on the status of hyperlinking in the cases Svensson and BestWater, this could be an opportunity for the ECJ to decide on hyperlinking to infringing or illegal content. Based on the average time taken to deal with references for a preliminary ruling, the ruling is expected mid-2016.(Footnote 7)

By Wieke During


Footnotes:

1) Request for a preliminary ruling from the Dutch Supreme Court lodged on 7 April 2015, case C-160/15, GS Media BV v. Sanoma Media Netherlands BV and Others.
2) ECJ 13 February 2014, case C-466/12, Nils Svensson and others v. Retriever Sverige AB.
3) ECJ 21 October 2014, case C-348/13, BestWater International GmbH v. Michael Mebes and Stefan Potsch.
4) Dutch Supreme Court, 3 April 2015, ECLI:NL:HR:2015:841 (GeenStijl/ Sanoma).
5) Court Amsterdam 12 September 2012, ECLI:NL:RBAMS:2012:BX7043 (Sanoma/GeenStijl).
6) Court of Appeals Amsterdam 19 November 2013, ECLI:NL:GHAMS:2013:4019 (GeenStijl/ Sanoma).
7) Court of Justice of the European Union, Press release No 27/15, Luxembourg, 3 March 2015.

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