European-Union-EU-flag-gavel-justice-600x395The Court of Justice of the European Union (CJEU) has, in a decision that’s controversial, ruled in favor of copyright owners and against hyperlinks.  In the CJEU decision, through qualified, has raised the possibility that publishers linking to infringing third party sites will be just as liable for infringement.

Critics of this decision made by the CJEU say that it amounts to judicial lawmaking and is an attack on the free flow of online information, which is the total opposite of how the internet has been operating to day.  With this decision, a burden of investigation is placed on the linking publisher to determine if the linked content is authorized or infringing.  There could be some cases where this is easy to determine, while others will be more difficult.  Either way, it just adds more issues.

The copyrighted material at issue in the case, GS Media vs Sanoma, were alleged nude photos of Dutch celebrity Britt Dekker, which were owned by the Dutch edition of Playboy and published by Sanoma.  Here are the facts as explained by the CJEU press release:

In 2011, GS Media published an article and a hyperlink directing viewers to an Australian website where photos of Ms Dekker were made available. Those photos were published on the Australian website without the consent of Sanoma, the editor of the monthly magazine Playboy, which holds the copyright to the photos at issue. Despite Sanoma’s demands, GS Media refused to remove the hyperlink at issue. When the Australian website removed the photos at Sanoma’s request, GeenStijl published a new article that also contained a hyperlink to another website on which the photos in question could be seen. That site complied too with Sanoma’s request that it remove the photos. Internet users visiting the GeenStijl forum then posted new links to other websites where the photos could be viewed.

In this case, though the publisher (in this case, GS Media) knew that linking the content was illegal and repeatedly linked it on different sites.

It’s required by the EU that “every act of communication of a

[copyrighted] work to the public has to be authorised by the copyright holder,” with a few exceptions.  This case supposedly turned on the issue of “communication to the public.”  This is something of a legal conclusion instead of a factual inquiry.  What this means is that when a for-profit publisher is linking to infringing content with knowledge of its illegality, the publisher will be held liable.

Here’s the court’s release:

[W]hen hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet. 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’.

There seem to be two related factual questions that will determine liability in the future:

  • Whether the linking publisher is for-profit — that appears to impose a burden of investigating the legality (authorization) of the underlying material
  • Whether the linking publisher knew of the illegality of the material on the other side of the link

In this case, there are some big implications for search engines.  This will undoubtedly have a major burden on Google, Yandex, Bing, Yahoo, and any other “search engine,” that can be accessed in Europe, to determining if sites that are indexed and present presented in search results contain unauthorized content.

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