The posting of a hyperlink on a website to works protected by copyright and published without the author’s consent on another website does not constitute a ‘communication to the public’ when the person who posts that link does not seek financial gain and acts without knowledge that those works have been published illegally.

On Thursday, the European Court of Justice delivered a judgment in a case that determined that “hyperlinking” to a website that has published unauthorised content is not a violation of copyright and intellectual property rules.

In contrast, the Court said, if those hyperlinks are provided for profit, knowledge of the illegality of the publication on the other website must be presumed.

The decision could play into upcoming legislative proposals on copyright by the European Commission, the bloc’s executive body.

The case was known as “GS Media BV vs. Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker”.

GS Media operates the website GeenStijl, which includes, according to information provided by that website, ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense’ and is one of the ten most visited news websites in the Netherlands.

In 2011, GS Media published an article and a hyperlink directing viewers to an Australian website where photos of Geertruida Dekker were made available. Those photos were published on the Australian website without the consent of Sanoma, the editor of the monthly magazine Playboy, which holds the copyright to the photos at issue. Despite Sanoma’s demands, GS Media refused to remove the hyperlink at issue. When the Australian website removed the photos at Sanoma’s request, GeenStijl published a new article that also contained a hyperlink to another website on which the photos in question could be seen. That site complied too with Sanoma’s request that it remove the photos. Internet users visiting the GeenStijl forum then posted new links to other websites where the photos could be viewed.

According to Sanoma, GS Media infringed copyright. Hearing the appeal, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeks a preliminary ruling from the Court of Justice on this subject. Pursuant to an EU Directive, every act of communication of a work to the public has to be authorised by the copyright holder.1 However, the Hoge Raad notes that the internet is overflowing with works published without the rightholder’s consent. It will not always be easy for the operator of a website to check that the rightholder has given his consent.

In today’s judgment, the Court declares that, in accordance with the directive concerned, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works. At the same time, that directive seeks to maintain a fair balance between, on the one hand, the interests of copyright holders and related rights and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information, as well as the general interest.

The Court recalls its earlier case-law in accordance with which the concept of ‘communication to the public’ requires an individual assessment, which must take account of several complementary criteria. Those criteria include, first, the deliberate nature of the intervention. Thus, the user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, in order to give access to a protected work to its customers. Secondly, the concept of the ‘public’ covers an indeterminate number of potential viewers and implies a fairly large number of people. Thirdly, the profit-making nature of a communication to the public is relevant.

In the present case it is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorised the publication of those photos on the internet. It appears from the facts, as stated in the Hoge Raad’s request for a preliminary ruling, that GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication.