Actu
Hyperlinks: the end of immunity!
November 2016 by Matthieu Bourgeois Partner, Information & Communication networks, SIMON ASSOCIES
The decision was expected (European Union Court of Justice, 8 September 2016; case C-160/15). In particular because the general attorney had published l, in last April, noteworthy conclusions, pleading for a partial immunity for the hyperlinks ’authors.
The solution given is unexpected. In opposition to its general attorney, Community judges lay down two principles:
(i) The placement of an hyperlink, redirecting towards a targeted website reproducing infringing contents, leads to prosecution against its author if he had not (or could not reasonably) known the illegal nature of said website;
(ii) This knowledge is presumed if the author acted with a profit-making purpose.
The facts of the case
Following an order from the "Playboy" magazine’s editor (the "Sanoma" company) a photographer had taken, in October 2011, pictures on which he granted the exclusive rights to publish them in the edition dated December 2011 of said magazine.
Few days after the shooting, an anonymous web user sent to the editor of a website dedicated to gossip news (the website "GentStijl", edited by the "GS Media" company), a message including an hyperlink redirecting towards an Australian website ("FileFactory.com") containing litigious pictures. In spite of multiple notices to remove received from the editor of the magazine, GS Media deliberately let the hyperlink online. However, the latter obtained the removal of the litigious pictures from the Australian website, but said pictures had previously been reproduced by other website hosts or editors and remained accessible through GS Media’s hyperlinks.
Condemned in first instance by the Court of Amsterdam, GS Media has then been declared not liable by the Dutch court of appeal which has refused to admit a copyright infringement since the pictures had been previously published on the Australian website. GS Media then referred the case to the Dutch Supreme Court, which asked to the European Union Court of Justice ("EUCJ") a range of preliminary questions.
The question submitted to the EUCJ
In essence, the EUCJ was solicited about the following question: does the insertion of an hyperlink - redirecting towards a content which the online dissemination has not been authorized by the right-holder - constitute an act of "communication to the public" subject to the prior right-holder’s consent?
In other words: does the insertion of an hyperlink (redirecting to a website disseminating a content without any authorization) constitute an act of "communication to the public" subject to the right-holder’s consent?
Let’s remind that the dissemination of a content in a website accessible without any restriction, with the prior right holder’s content, prevent the latter from objecting against the insertion of an hyperlink on other websites (EUCJ 13 February 2014; case "Svensson", C-446/12). The question at stake, here, was about a different hypothesis: where an author had not authorized the dissemination of contents on a website A, towards which redirects an hyperlink placed on a website B. Is this editor of the website B liable? "No" some will say, since B simply makes the access easier to the content which is already online. That is A, author of the first on-line release, who made the first communication. At the most, B makes the communication easier, but does not trigger it. This position was shared by the general attorney involved in this case.
The answer of the EUCJ
According to the European judges:
– A third party posting on a website, without the right-holder’consent, an hyperlink redirecting towards legally protected contents disseminated on another website, is a "communication to the public", and leads to prosecution if it is proven that said third party actually had known (or could have reasonably known) the illegal nature of the publication of those contents;
– This knowledge will be presumed when the posting of hyperlinks had been carried out for profit.
The decision aftermath
This decision should lead any professional posting hyperlinks for making-profit purpose, to check the content of their advertisers’ websites or, at least, require from the latter a contractual guarantee on that matter.
Under any assumption, no one will be able to invoke a regime of immunity - prevailing hitherto - when he posts hyperlinks on his website redirecting towards illegal websites.
