A further ruling on when the posting of hyperlinks to copyright material constitutes an illegal infringement has been delivered by the EU Court of Justice.
The court ruled that Dutch company GS Media, which operates a popular news website in the Netherlands, had infringed the copyright of Sanoma, the owners of Playboy magazine, by posting links to photos in which Sanoma held copyright and which were illegally posted to other websites. GS Media had refused to remove the links on Sanoma's demand, and had posted further links when the photos were removed from the first website to which it posted links.
Referred from the Dutch courts, the case was brought under an EU directive that "every act of communication of a work to the public has to be authorised by the copyright holder". The court held that it had to be presumed that the act of posting a clickable link to a work illegally published on the internet constituted a "communication to the public" where the posting was for profit, "as it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published".
Similar considerations applied where the person posting was notified of the illegality by the copyright holders, or if their link allowed users to circumvent the restrictive measures taken by the site where the protected work was posted in order to restrict the public’s access to its own subscribers.
However the court contrasted the general posting of links where this was not for profit, emphasising the importance of the internet for freedom of expression and the difficulty of ascertaining whether particular works were protected or whether the copyright owners consented to their publication.
"For the purposes of the individualised assessment of the existence of a ‘communication to the public’," it stated, "it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder."
In the present case, it appeared that GS Media was aware of the illegal nature of the publication "and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication". Subject to the facts being confirmed, by posting those links, GS Media therefore "effected a ‘communication to the public’".