CJEU Judgment of 8 September 2016, C-160/15, “GS Media”: New Guidelines to Determine the Existence of an Act of Communication to the Public
In the present post we offer a summary of the conclusions of the long awaited Judgment of the CJEU of September 8, C-160/15, “GS Media”
The Dutch Company GS Media operates a website that according to their own description focuses on “news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense”.
In late 2011, the aforesaid company published an article including a link to the web of the Australian service provider “Filefactory” on which some 11 pictures of a Playboy model (Ms. Dekker to be more concise) were hosted. The copyright over the pictures at stake were property of editorial Sanoma that has not consented to their publication.
In view of that Sanoma asked GS Media to withdraw the link to the Australian site, request that was ignored. After GS´s refusal Sanoma asked Filefactory to remove the infringing content. The later accepted and subsequently withdrew the content.
Some days after that, GS Media published a second article including another link redirecting to Imageshack.us where the 11 pictures we have referred to above were also displayed. Once again GS Media refused to eliminate the allegedly infringing material and Sanoma had to ask Imageshack´s webmaster so that the images were removed.
Later on, and for the third time GS Media published an article with a link that led to the 11 pictures in question located in a third different server. GS Media was requested to remove the link, however, just like in the other two occasions they refused to do so in the belief that their acts would amount to no illegal act.
Before the depicted scenario, and following both decisions from the lower courts, the case reached the Hoge Raad (Supreme Dutch Court) that decided to refer a set of questions to the Court of Justice in order to clarify, in essence, if in the case at hand the fact of including a hyperlink that leads to third parties´ content may be considered as an act of communication to the public as defined by article 3, section 1 of the Directive 2001/29 (and in particular be considered infringing since the act at hand would not have the right holder permission)
To answer the question, the Court of Justice starts by recalling its earlier case law in Judgments of 13 February 2014, C-466/12, “Svensson”, of 19 November 2015, C-325/14, “SBS Belgium”, and 31 May 2016, C-117/15, “Reha Training”. According to these judgments, an hyperlink to a content that have been made available in the Internet with the consent of the copyright holder does not constitute a new act of communication to the public because it is not directed to a new public. For the present case, the Court points out that the facts are not exactly the same since the content – the pictures – to which the hyperlink lead have been published without the consent of the copyright holder. Therefore, it was for the Court to determine whether to apply the previous case law or to not.
In this context it seems quite interesting to us the allegation made in sections 44 to 46 of the decision where it is claimed that the use of hyperlinks contributes to the sound functioning or the Internet. Being so, considering on automatic basis that the inclusion of a link that redirects to a second site where content protected by copyright is held, is not acceptable. That being even more so, if we bear in mind the immensity of the Internet and the complexity existing in most of the cases in order to determine if a certain piece of content is protected. According to the Court that “would have highly restrictive consequences for freedom of expression and of information”.
When reasoning the response to the questions referred, the Court confirms in the first place that the concept of “communication to the public” demands the assessment of several interdependent factors including the deliberate nature of the intervention of the responsible of the action, the fact that the action at hand is addressed to a undetermined (and considerable) amount of people, and whether the responsible is pursuing a lucrative activity or not.
Out of those factors, the Court focuses its reasoning on the relevance that for a case that the one dealt with may have the circumstance that the inclusion of the conflictive link has been made with or without the pursue of profit.
In this context, when the hyperlink is included without the intention to get an economic gain, the fact that the person responsible does not know or could not reasonably know that the material has been published without the consent of the right holder must be observed.
Being so, in those cases where the responsible of the act is not pursuing an economic activity and he does not have knowledge of the ilegal character of the content and the lack of consent from the right holder, the act of hyperlinking can not be considered an ilegal activity. That would not be the case, if the responsible had knowledge of the illegality of the content due for example to a notification sent by the right holder.
Furthermore, when the hyperlink is placed by someone pursuing an economic activity, it shall be understood that he should have been adopted the necessary measures to verify that the content to which the hyperlink leads was not illegal and was uploaded with the consent of the copyright holder.
As a conclusion, the CJEU states that “in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed”.