The continuation of cases concerning hyperlinking. A question has been raised before the Court of Justice of the European Union as to whether providing a hyperlink to unlawful content constitutes a breach of law.
At the beginning of 2016, Melchior Wathelet, Advocate General at the Court of Justice, issued an opinion concerning , stating that the posting of a hyperlink to a website which publishes photos without authorization does not in itself constitute a copyright infringement. Hence hyperlinking, even to unlawful content, does not violate copyright law.
GS Media v Playboy
The opinion was issued in relation to Case C-160/15, where the CJEU considered a preliminary ruling referred from the Supreme Court of the Netherlands. The Dutch judges were in doubt when resolving a dispute between GS Media and Sanoma Media, Playboy and Britt Geertruida Dekker. The case involved a photoshoot, commissioned by Playboy’s editor in the Netherlands, about Britt Geertruida Dekker, who regularly appears in TV programs. The GreenStijl website (run by GS Media) published an article on the subject with a hyperlink redirecting to another website, where the photos from the photoshoot were posted without the consent of Playboy’s editor. Playboy called for deleting the hyperlink, claiming that GS Media violated their copyrights by providing a hyperlink to unlawful content.
Hyperlinking as communicating to the public?
When considering the preliminary ruling, the CJEU had to interpret Article 3 of the EU Directive, according to which every act of communicating a work to the public has to be authorized by the copyright holder. Therefore, it was necessary to establish whether providing a hyperlink to a website containing works that are protected by copyright law means an act of communicating such a work to the public. In his decision, the Advocate General of the CJEU acknowledged that a hyperlink undoubtedly facilitates access to certain content. Nevertheless, providing such hyperlinks cannot be considered making the content available to the public, when the content has already been published on other websites. Only the initial communication shall be considered as communication to the public, as referred to in Article 3 of the Directive. The Advocate General believes the activity of an entity which runs a website where hyperlinks are placed (in this case – GS Media) is not necessarily intended for Internet users to get acquainted with such works.
The reasons behind the opinion
The Advocate General’s opinion is a step towards Internet users. When issuing it, Melchior Wathelet was guided by one of the main purposes of the Directive – the development of the information society. Any other interpretation of “communicating to the public” would have been inadequate and would have hindered the use of the Internet and, what follows, impeded the Directive’s assumptions. Also for that reason, he indicates in the opinion that it is irrelevant whether the entity posting a hyperlink knows whether the works to which the hyperlink redirects are lawfully published or not. The Internet users usually do not know if the initial communication to the public followed the consent of the right holder as it is also not always easy to verify. Creative Commons copyright-licenses may facilitate communicating works, as such licenses clearly show what we are entitled to with respect to a particular work.
The CJEU’s position so far
The final verdict in this case is still pending and the opinion of the Advocate General is not binding for the CJEU. It should be noted the conclusions in the opinion are in line with the CJEU’s rulings related to hyperlinking in cases such as Svensson (C-466/12) and BestWater (C-348/13).
In the Svensson case () the CJEU stated that providing a hyperlink to a website where a work was published does not broaden the number of its recipients, provided that the initial website was generally accessible. Hence, we can talk about broadening the number of recipients only if the initial communication was not accessible (even potentially) to all Internet users, and providing a hyperlink to a work was necessary to communicate it to the public. This happens if a hyperlink allows for circumventing the restrictions being in force in the initial communication in the Internet. Broadening the number of recipients cannot be merely facilitating access to a work. As can be read in the ruling: “for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to the public in such a way that the persons forming the public may access it, irrespective of whether they avail themselves of that opportunity.”
In the BestWater case (, the dispute concerned a video advert on water pollution to which BestWater, a water filter manufacturer, had the copyright. The advert appeared on YouTube without the author’s consent and was then published, also without BestWater’s consent, on a website of its competitor. In line with its ruling concerning the Svensson case, the CJEU stated that providing a hyperlink to the commonly available website did not infringe the copyrights, even if the hyperlinked content was embedded in it, i.e. it opened as an element of the website. As a result, in the case considered it was not relevant whether the video was uploaded to YouTube following the author’s consent or not.
The CJEU’s rulings so far have definitely supported the development of the information society as well as the freedom of information on the web. It is interesting what course will be taken in this case. We will, of course, let you know about the Court’s judgment on our blog.
 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society