Link Liability
Decision of the
ECJ.
Link Liability
Decision of the
ECJ.
by
Are you liable for links to illegal content, or not? The European Court of Justice has now ruled on this matter.
Playboy Photos from the Netherlands
The legal dispute involves Sanoma, the publisher of Playboy, and the company GS Media. GS Media had published hyperlinks on a website it operated to other websites that allowed users to view illegally copied photos of Ms. Britt Geertruida Dekker taken for Sanoma (Playboy).
Sanoma demanded that GS Media remove the hyperlink, but GS Media refused. After the Australian website removed the images at Sanoma’s request, GS Media found another source to link to. Sanoma also took that source offline, whereupon GS Media sought out additional sources and linked to them.
Sanoma subsequently sued GS Media for copyright infringement, arguing that by placing the hyperlinks, GS Media had made it significantly easier to find content that was not easily discoverable.
In his opinion, Melchior Wathelet, Advocate General at the ECJ, took the view that links to freely accessible websites do not constitute “making available to the public” for the purposes of copyright law, since the linked content is already publicly available.
The ECJ’s Decision on Link Liability
The ECJ did not follow the Advocate General’s opinion and ruled in favor of Sanoma.
In its judgment of September 8, 2016—Case No. C-160/15 —the ECJ ruled that posting a link may constitute a public communication and thus a copyright infringement.
The court holds that this is the case when such hyperlinks are provided with the intent to make a profit. In such cases, it is presumed that the person providing the hyperlinks is aware of the unlawfulness of the publication. This is because the person who posted the hyperlinks can be expected to carry out the necessary checks to ensure that the work in question has not been published without authorization on the website to which the hyperlinks lead.
It is also considered a public performance if the person who posted the link knew or should have known that the hyperlink they posted provided access to a work published on the Internet without authorization, particularly if the copyright holder brought this to their attention.
Conclusion
According to the ECJ, links are indeed of great importance for freedom of expression and the exchange of information. However, with this ruling, the ECJ sets limits that should also be observed in Germany in the future.
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