8 September 2016Copyright

CJEU backs linking to unauthorised copyright under certain conditions

Europe’s highest court has ruled that posting a hyperlink to unauthorised copyright works is not a communication to the public, but has set two conditions.

In a decision handed down today, September 8, the Court of Justice of the European Union (CJEU) ruled that there is no communication to the public as long as the person who posts the link doesn’t seek financial gain and doesn’t know that the works have been published illegally.

The court was ruling on GS Media v Sanoma Media, referred by the Supreme Court of the Netherlands.

The ruling is not yet available on the Curia website but a press release has been published.

Sanoma, the publisher of magazine Playboy, had sued GS Media for publishing hyperlinks on its website GeenStijll that directed viewers to an Australian website where photos of Dutch celebrity Britt Dekker were available.

The photos were published without the consent of Sanoma, which owns the copyright to the photos at issue.

The CJEU said that member states are to “provide authors with the exclusive right to authorise or prohibit any communication to the public of their works”, in accordance with EU Directive 2001/29/EC.

“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,” said the court.

It added that when hyperlinks are posted for profit, the person who posted the link should carry out the necessary checks to ensure that the work is not illegally published.

The court explained that it must be presumed that the posting has been done with the full knowledge of the protected nature of the work, along with the potential lack of the copyright owner’s consent.

“In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’,” it said.

The court ruled that it was “undisputed that GS Media provided the hyperlinks … for profit and that Sanoma had not authorised the publication of those photos on the internet”.

It held that GS Media had effected a communication to the public as the company was aware of the illegal nature of the publication and that therefore it couldn’t “rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication”.

In April 2016, the advocate-general expressed that even hyperlinks to unauthorised copyright material are not a communication to the public, provided that the material is freely available on the other website.

“It follows that, in order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy works,” he said.

Tom Collins, associate at law firm Stevens & Bolton, said: “The decision strikes a fair balance between protecting the interests of copyright owners whilst preserving freedom of the internet in an age where hyperlinks are shared so prevalently.”

He added that this will avoid a regime where internet users who have innocently posted hyperlinks are vulnerable to copyright infringement.

The decision will protect rights owners by allowing them to take action against “those deliberately facilitating access to content which they know (or ought to know) was illegally published”, explained Collins.

He said: “For those sharing hyperlinks in a commercial context, there will now be an expectation to carry out checks to ensure that the content has not been illegally published. This will inevitably raise some practical difficulties for some online businesses.”

Josephine Curry, associate at law firm Taylor Wessing, agreed, adding: "The decision will be welcomed by copyright owners as it offers some protection against commercial websites who post links to unauthorised copies of their works."

She said: "The breadth of circumstances in which posting links is considered to be done for financial gain will be key to determining how much of an impact this ruling has on day-to-day online activities in a wide range of industries."

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at

More on this story

9 September 2016   Following the Court of Justice of the European Union’s decision on hyperlinking and copyright yesterday, intellectual property lawyers have told WIPR that the ruling leaves “considerable uncertainty for legitimate businesses”.
3 October 2017   Germany’s Federal Court of Justice has backed search engine Google in a dispute over whether the use of thumbnail images constitutes copyright infringement.
10 March 2021   In the wake of an important ruling for copyright owners and their licensees handed down by the Court of Justice for the European Union, IP lawyers have told WIPR that the decision is likely to have significant ramifications for rights owners.