Infringing Playboy and it’s not Trump!

The Court of Justice of the European Union (CJEU) have ruled that hyperlinks can infringe copyright within the EU.

In 2011, GS Media published a report regarding nude photos of Britt Decker, the copyright of which was owned by Sanoma (who run Playboy in the Netherlands), the report referred to a link to locate the pictures by clicking on a hyperlink “HERE”. Once the user clicked on “HERE” they were directed to an Australian website Filefactory.com.  By clicking “DOWNLOAD NOW” the user was provided with eleven pdf images of Britt Dekker.

After successful claims against GS Media in the Netherlands, the Court of Appeal decision was appealed to the Supreme Court, who sought guidance from the CJEU on a question of law. The question being, whether the creator of a  hyperlink on a website leading to a further hyperlink on a third party website allowing the user to access copyrighted material and the work has been made available without the copyright holder’s consent, does that constitute a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29.

It was undisputed that GS Media provided hyperlinks to files containing copyrighted photos, which were hosted on Filefactory.com for profit and Sanoma had not authorised the publication of the photos. GS Media were aware of this, therefore they cannot rebut the presumption that they were fully aware of the illegality of posting the hyperlinks.  Therefore, they effected a “communication to the public”.

What does this mean?

If you post a hyperlink on your website to protected work for profit, your knowledge of the illegality will be presumed as the hyperlink constitutes a communication to the public.   Unless you are able to rebut the presumption of knowledge.

However, if you provide a hyperlink for reasons other than for profit and you did not know, and could not reasonably have known, that the copyrighted material accessed via the hyperlink was not authorised (by the copyright holder) the hyperlink will not be a communication to the public.

Comment:

If you have any queries regarding copyright and the provision of hyperlinks, please contact Briffa. We will advise you on all aspects of copyright and e-commerce.