THE COURT OF JUSTICE OF THE EUROPEAN UNION DECIDES ON THE ISSUE OF HYPERLINK AS “COMMUNICATION TO THE PUBLIC”
With judgment of 8 September 2016, the Court of Justice of the European Union took into consideration the complex issue related to qualifying as “communication to the public” a hyperlink inserted within a web page. In particular, with judgment C-160/15 the Court declared that there is “communication to the public” when a link published on a website without the authorization of the copyright holder redirects the user to works that are protected and freely available on another website.
As for this case, in October 2011, GS Media – a company that manages the GeenStijl.nl website, one of the most visited Dutch current affairs webpages – inserted within the site a hyperlink redirecting users to an electronic file uploaded on the Australian data archive website Filefactory.com. That file was accessible by anyone who clicked on the link and contained photographs taken on commission by Sanoma, the editor of Playboy magazine, where said photographs were supposed to appear on the December 2011 edition of the magazine. In this way, the photographs were made available to the public without authorization of the editor who holds the copyright in the photographs. On more than one occasion, Sanoma requested that GS Media remove the hyperlinks present on the GeenStijl website.
The issue considered by the Court of Justice had already been partly dealt with in 2014 by the Svensson judgment – to which reference was made in the judgment here analysed – that provided the definition of “communication to the public”. In both judgments the Court stated that i) an act of “communication to the public” had occurred when, absent intervention by the user, the clients may not benefit from the divulgation of the work and ii) “public” should be understood as referring to an indefinite number of potential users, including a consistent number of people.
However, the GS Media case was decided in a different way from Svensson. In the latter case, the Court held that there was no “communication to the public” in so far as the hyperlink that had been made available to the users redirected them to a website on which content had been published with the authorization of the copyright holder. The hyperlink was not relevant for the divulgation of the content of the website to which the users were redirected, because the copyright holders over such work, when they had authorized its communication, had considered the entire group of Internet users as a public.
In the case considered here, however, the Court held that publication of a link amounts to “communication of the public”, on the grounds that i) the insertion of the link by the Dutch website had fulfilled the necessary condition for divulgation to the public which, in light of failure to act by GS Media, would not have benefited from the content and ii) the divulgation of the images was carried out without the authorization of the holder of the copyright in the photographs, and where GS Media, who acted in pursuit of financial gain, were aware of such lack of consent. Under those circumstances, the Court held that in this case communication of the link had caused the information to become accessible by a new and different public from that to which the photographs had been destined, with the consequence that such act could properly be qualified as a “communication to the public”.