April 11, 2016

The defendant, Sanoma Media Netherlands BV, the editor of the monthly magazine Playboy, commissioned a photoshoot of Britt Dekker, who regularly appears on television programmes in the Netherlands.  The claimant, GS Media BV, operator of the website GeenStijl, published advertisements and a hyperlink directing viewers to an Australian website where the photos in question were made available without the consent of Sanoma.

Sanoma asked the Australian website to remove the photographs, which it did.  GS Media then published a new advertisement containing a hyperlink to another website on which the photos could be seen.  That website also complied with Sanoma’s request to remove the photos.  Users of the GeenStijl forum then posted new links to other websites where the photos could be viewed.

Sanoma issued proceedings against GS Media in the Netherlands for copyright infringement.  The matter reached the Supreme Court of the Netherlands, which sought a preliminary ruling from the Court of Justice of the European Union in relation to the hyperlinks on the GeenStijl website.

Advocate General Wathelet opined that hyperlinks that lead, even directly, to protected works does not amount to “making them available” to the public when they are already freely accessible on another website.  Such hyperlinks merely serve to facilitate their discovery, he said, and the “making available” is the action of the person who effected the initial posting of the infringing content.

Such hyperlinks cannot, therefore, be classified as an “act of communication”, the Advocate General said.  In this case, GS Media’s intervention, i.e. posting the link, was not indispensable to the photos being made available to internet users, including those who visited the GeenStijl website.

Further, the Advocate General said, GS Media’s motives and the fact that it might have known or should have known that the inclusion of the photos on other websites had not been authorised by Sanoma or that the photos had not previously been made available to the public with Sanoma’s consent was not relevant.

However, the Advocate General said, his Opinion was based on the premise that the photos were “freely accessible” to all internet users on third party sites.  The question of whether the intervention of GS Media was in fact indispensable to making the photos available to visitors of GeenStijl’s site was a question of fact and was a matter for the national court.

In the Advocate General’s view, any other interpretation of the concept of “communication to the public” would considerably impede the functioning of the internet and would infringe one of the principal objectives of the Copyright Directive (2001/29/EC), namely the development of the information society in Europe.

Further, the Advocate General said that, as a general rule, internet users lack the knowledge and the means to verify whether the initial communication to the public of a protected work freely available on the internet was done with or without the consent of the copyright holder.  If internet users risked liability for copyright infringement every time they posted a link to a protected work that was freely accessible on another website, they would be much more hesitant to post such links, to the detriment of the proper functioning and very architecture of the internet as well as the development of the information society.  (Case C-160/15 GS Media BV v Sanoma Media Netherlands BV (Opinion of Advocate General) 7 April 2016 — to access the Opinion in full, go to the curia search form, type in the case number and follow the link).