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The European Court of Justice (hereinafter referred to as the “ECJ”) had recently issued a relatively breakthrough and simultaneously a little bit unexpected decision, which is to some extent ruling against the legality of using hyperlinks on the internet, which are leading to websites, whose content infringes a third party’s copyright. The decision refers to the case of GS Media BV v. Sanoma Media Netherlands BV, Case C-160/15 (hereinafter referred to as the “Decision”), where the company GS Media posted on its web hyperlinks to an Australian site containing photos of a Dutch model Britt Dekker, which have been shot for the Playboy magazine and were published without the copyright holder’s consent. GS Media was subsequently notified by the company Sanoma Media, who is the publisher of the Playboy magazine in the Netherlands, of the fact that the hyperlinks provide access to illegally published photos and therefore should be withdrawn. Since GS Media did not effectively respond to the appeal of Sanoma Media, the case got before the court and wandered all the way to the ECJ.

Based on the circumstances of the case, the ECJ has come to the conclusion that not every posting of hyperlinks leading to works illegally published on the internet qualifies as a “communication to the public” within the meaning of Article 3 (1) of the Copyright Directive 2001/29 EC. According to the ECJ, this would represent an excessive restriction to the freedom of expression and of information and it would not be consistent with the right balance between that freedom and the public interest on the one hand, and the interests of copyright holders in an effective protection of their intellectual property, on the other.

In its Decision, the ECJ was led predominantly by its effort not to harm or damage the correct functioning of the internet and with that in mind, it distinguished two major situations in respect of hyperlinks, depending on whether their posting was executed for the purpose of making a profit or not. This first scenario applies to situations, when the posting of hyperlinks (leading to content published without the copyright holder’s prior consent) is made by a person, who does not do so for the purpose of making profit. In this case, the posting of hyperlinks represents neither a “communication to the public”, nor an infringement of a copyright, unless the person knew or ought to have known (e.g. was explicitly notified about it by the copyright holder) that the given hyperlink provides access to illegally published works. Therefore, if a person didn’t or couldn’t have sufficiently known about the copyright infringement and was not pursuing any profit by posting the hyperlinks, it cannot be reasonably expected from such an individual to be aware of all the possible consequences that his actions could have and to know that the works have been published on the internet without the copyright holder’s consent. In effect, an individual cannot be liable for such a conduct.

However, a different approach comes in when a person posts the hyperlinks on the internet for the purpose of making profit, as the ECJ ruled out in the Decision. In this case, a person posting the hyperlinks should exert a sufficient effort in order to find out about any potential consequences that his actions might have on others and therefore to be aware of and/or presume any potential copyright infringement. As a result, according to the ECJ, a rebuttable presumption of the knowledge of the lack of consent to publication of the works on the internet by the copyright holder shall apply (if the posting of the hyperlinks was pursuing a profit) and, unless the presumption is sufficiently rebutted, such a conduct shall constitute a “communication to the public” and an infringement of the copyright to the works.

The decision of the ECJ had undoubtedly clarified the conditions relating to usage of hyperlinks on the internet. On the other hand, it had also increased the general requirements on individuals when posting hyperlinks on the internet, as they will have to be more cautious now, especially with regard to fulfilling the conditions of posting the hyperlinks “for the purpose of making profit”, which could be interpreted relatively extensively by the courts and easily result in an illegal copyright infringement.

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