Hyperlinking: the role of intention and knowledge
In its recent decision in GS Media v Sanoma Media and Ors, the Court of Justice of the European Union (“CJEU”) has arguably brought the law… Read more
In its recent decision in GS Media v Sanoma Media and Ors, the Court of Justice of the European Union (“CJEU”) has arguably brought the law up to date with modern online practices. Website operators are largely free to link to and frame on their websites content which is already available online elsewhere, without fear of repercussions. That activity will not, in a vast number of cases, constitute a communication to the public for the purposes of Article 3(1) of the InfoSoc Directive , which is an exclusive right of the copyright holder. However, there are still instances where linking or framing will not be lawful. When that is, is now a question of intention and knowledge of the hyperlinking party.
The basic position, as set out in Article 3 (1) of the InfoSoc Directive, is that the author of a copyright work has the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means. In other words, it is solely up to the author of a work to decide how and when to communicate that work to the public, and the author, as owner of the copyright in the work, may prevent third parties from communicating that work to the public without their consent.
With a post-Brexit focus on the English law implementation of this Article, section 20 of the Copyright Designs and Patents Act 1988, reads:
The communication to the public of the work is an act restricted by copyright in (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film, or (c) a broadcast. References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include (a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and a time individually chosen by them.
The position before GS Media
In the modern context of online sharing and interconnectivity, a restrictive reading of these provisions, and a wide-reaching interpretation of the exclusive right bestowed upon the copyright owner, is close to unworkable. Internet users share content, via hyperlinking and framing, on a regular basis. To say that every instance of re-posting or sharing content is an infringement of the author’s copyright, would be to make nearly every internet user an infringer, and to effectively paralyse the internet.
It is therefore no surprise that the GS Media case comes against a background of other linking and framing cases, most notably, Svensson  and BestWater , wherein European national courts sought guidance on when hyperlinking would be acceptable.
In those cases, the CJEU concluded that providing a hyperlink to a copyright work that was ‘freely available’ online already, would not be a ‘communication to the public’ for the purposes of Article 3(1) of the InfoSoc Directive. In doing so, a new understanding of Article 3(1) was presented: in order for there to be infringement by way of a communication to the public, there needs to be a communication, which is without the right-holder’s consent, but which is also to a new public. The public to which the hyperlinking party communicates the work cannot be the same public as already enjoys access to the work elsewhere and which the rights-holder anticipated would access the work, when authority was given to publish. In Svensson, in particular, the works in question (journalists’ articles) were already live and accessible to all internet users, without restriction, on a free newspaper website. When the defendant in that case provided hyperlinks on his website to the works, there was therefore no new public being given access to the articles.
The matters and considerations arising from the GS Media case were not, however, easily dispensed with; notwithstanding the guidance of Svensson. Here, for the reasons set out below, the hyperlinking party and the decision to hyperlink to copyright works, albeit works already available elsewhere on the internet, seemed somehow altogether more unacceptable and underhand than the hyperlinking in Svensson. But the line had already been drawn by Svensson. How could the CJEU make one kind of hyperlinking unlawful, whilst allowing ordinary internet users to link and frame without repercussion?
In GS Media, the defendant (GS Media), was the operator of a popular Dutch gossip blog-style website called GeenStijl. It was notified that certain photographs of Dutch TV personality Britt Dekker shot for Playboy magazine – but which had not yet been published by Playboy – could be found and viewed on an Australian-hosted data hosting site called Filefactory.com. It was also notified, at around the same time, by the publisher of Playboy, that the photos were not supposed to be accessible on Filefactory.com. Playboy asked that the photos not be published on GeenStijl.
Notwithstanding that the photos shouldn’t have been there, and that GS Media knew that, GS Media proceeded to publish a story on its GeenStijl website inviting its users to click on a link which would take them to the photos on the Filefactory.com website. When the Filefactory.com photos were removed, GS Media posted an alternative link, to another website where they could be accessed by its users. This was all before Playboy actually published the photos itself.
Unlike in Svensson, therefore:
- the works to which the hyperlinks led the user were published without consent online, and there were no authorised publications anywhere at all, yet;
- the hyperlinking party knew that the works to which they were providing links were online unlawfully; and
- the works hyperlinked to – whilst already online somewhere – were not exactly readily available online, and were difficult to find and access, by reason of certain restrictions on Filefactory.com.
In those circumstances, the CJEU was effectively asked whether the Svensson rule still applied, or whether GS Media’s hyperlinking fell into a different, and unlawful, category – i.e. amounted to a communication to the public.
On the face of it, and against the backdrop of previous decisions dealing with the interpretation of ‘communication to the public’, GS Media might have thought it would get away with its actions. It did not use a new technical means (the internet had already been used to publish the photos), and the works were already available online (no paywall was in place on Filefactory.com).
However, the CJEU’s focus here was different. It re-emphasised that the role played by the hyperlinking party is key. It asked whether the hyperlinking party, by way of its intervention, has deliberately provided access to works that otherwise would not or should not have been readily accessible. In so doing, the hyperlinking party may have given access to those works to a new public.
The CJEU concluded that, as part of the analysis of whether Article 3(1) is triggered (which must be on the facts of each case), it is a key consideration whether the hyperlinking party knew or ought to know that the works in question were only already available due to unlawful activity. Did the hyperlinking party know, or should it have known, that the right-holder had not given consent? In that regard, the CJEU directed that there should be a presumption that a hyperlinking party ought to know the status of consent, where the hyperlinking party is profiting, or is seeking to profit, financially from providing the hyperlinks. In other words, it should be part of the due diligence, where the hyperlinking forms part of a commercial exercise, to check that the works to which hyperlinks are provided, are already online with the consent of the rights-holder. Even if the goal is not financial gain, then the hyperlinking party might still be culpable, where it is on actual notice, or should otherwise have known that the works hyperlinked to are online unlawfully.
Accordingly, whilst a party does nothing wrong if it provides hyperlinks to a work that is already, lawfully, online – whose public is the internet audience at large – a party may well do something wrong if it provides hyperlinks to a work that should not have been published online at all. Where the right-holder’s consent wasn’t obtained (or impliedly given by the right-holder’s actions) in the first place, the Svensson rule no longer applies.
Having said this, the CJEU recognises that it is often going to be impossible or impracticable to find out whether a work is online with or without permission. Whether or not that party is actually infringing (i.e. whether the hyperlink is a communication to the public for the purposes of Article 3(1)) will therefore depend on the state of their knowledge when it comes to the right-holder’s consent, or lack thereof. And it will be assumed that they know or should know about the existence or otherwise of that consent, if, in providing the hyperlink, they are pursuing a profit. That presumption can be rebutted, but it will be the starting point for an assessment of whether the linking party is committing an infringing act.
In this way, the CJEU has ensured that the freedom to hyperlink is necessarily curbed. Where a hyperlink gives access to a work that should not already be online, and the hyperlinking party knows (or ought to know) that, or where that party seeks to profit from providing the link and therefore should have known that the original work is unlawfully online, this can be deemed to be a communication to a (new) public. The public that is seeing the work online is not that contemplated by the rights-holder. On that basis, intentional, deliberate proliferation of unlawful copyright infringement is caught; but everyday sharing of content is not.