Linking To Site That Contains Illegal Content Is The Same As Infringement Says European Court

It’s another ruling from Europe again and this time it may affect more people than you can think of. In a decision that was published on the 8^th of September, the Court of Justice of the European Union (CJEU) says publishers and content providers who link content to third party sites that violate copyright rules will now be liable for copyright infringement too. The big question here is, how do you really tell? It’s difficult sometimes.

In a  GS Media BV v Sanoma Media Netherlands BV case which bordered on a 2011 publication by GS Media where it was alleged that the defendant published an article with a hyperlink directing anyone who clicked on it to an Australian website where photos of Dutch celebrity Britt Dekker were published on the Australian site without consent from Sanoma Media Netherlands BV. Now this is a case of being an accomplice according to the court which means that GS Media by providing a link to another website that may be in violation is also an accomplice and that’s where the problem lies.

Explaining further in a release, the court said, according to Sanoma, GS Media infringed copyright. Hearing the appeal, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeks a preliminary ruling from the Court of Justice on this subject. Pursuant to an EU Directive, every act of communication of a work to the public has to be authorised by the copyright holder. 1 However, the Hoge Raad notes that the internet is overflowing with works published without the rightholder’s consent. It will not always be easy for the operator of a website to check that the rightholder has given his consent. In today’s judgment, the Court declares that, in accordance with the directive concerned, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works. At the same time, that directive seeks to maintain a fair balance between, on the one hand, the interests of copyright holders and related rights and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information, as well as the general interest………. in contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally published, for example owing to the fact that he was notified thereof by the copyright holders, the provision of that link constitutes a ‘communication to the public’

That said, it looked as though this was a special case where profit could have been made by the primary violator (Australian website) and GS Media in form of traffic and even sales and this is probable seeing as celebrity photos may were involved. You and I know the value society places on this and profits that can be made by using such photos if not authorised. But really I don’t see a way out because the court is effectively saying you should seek permission and do your due diligence before providing such links on your website.

Furthermore, when 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.

The real problem here is that this could affect even legal referencing in future and effectively limit the flow of information on the internet. The internet many have argued over the years is a public sphere which allows free flow of information and ideas around the world. If this were to be a global rule for example, think of what authoritarian regimes could do with this. While the ruling of the court should be respected, they have now placed an additional burden on publishers (mostly legal) to carry out the rigorous task of confirming each time to see if links to a website represent infringement or not. This affects timing of “free flow” of information and in this day and age, timing of media reports is key.

Europe which has been seen in the past to make anti “big tech” rulings in the past with this judgments has escalated that suspicion. Think of the likes of Google, Bing, Baidu and others who run web search engines. They all reply on data indexing which in turn means links which is what you see each time you type in a request. This may ultimately open to the door to countless lawsuits against search engines in future all of whom rely on information available on the web. The question is, how they are supposed to know what is legal and illegal based on the current algorithm they employ.

A future worst case scenario will be that the likes of Google are not able to display full search results to Europeans which also means less information to internet users in that region and the ripple effect is enormous.

Europe introduced the “right to be forgotten” back in 2014 and Google has since complied with the ruling that allows Europe users demand that their history on the internet be deleted. The case was brought to the court by a Spanish man who said that an auction notice of his repossessed home, which appeared on Google’s search results, infringed his privacy.

There are still antitrust claims against Google in Europe. A European court had last month asked Apple to pay back $14b in “illegal state aid” taxes in a landmark ruling that is now being appealed by Ireland and Apple.

Other American tech companies that may face similar ruling include Microsoft, Facebook and Amazon.

On a lighter note, we hope the links provided in this article don’t count as copyright infringements though 🙂