Naughty pics and controversial clicks - new guidance on hyperlinks to third party content

• Posting a link to third party content made freely available on the internet by its owner will not infringe the content owner’s copyright
• However, if the third party content is on the internet without the owner’s consent, there is a presumption that any person looking to make “financial gain” from providing the link knew it was there illegally and will thus be infringing
• Once rights holders notify the poster that the link leads through to unauthorised content, the poster will be infringing copyright and should remove the link

The Court of Justice of the European Union yesterday released its judgment in GS Media v Sanoma, which is the latest in a series of judgments on the legality of posting links to third party content on the internet. This will be of particular relevance to businesses that curate content for publication on social media channels and on websites, and also to those in the music, sports and entertainment businesses.

This area of copyright law is relatively new and steadily evolving. Unfortunately, the judgment is far from clear and there is likely to be lots of debate on what it means. In this case, the businesses behind the famous Playboy empire were seeking to stop the publication of links on a Dutch website to images of one ‘Ms Dekker’ which were posted (illegally) on file sharing websites. The basic legal position is that only the rights holder (or those authorised by it) is able to communicate a copyright work to the public via broadcasting or making it available online. Most of the battleground around this right has related to linking to valuable third party content, often which is available on the internet either with or without the consent of the rights holder.

Back in 2014, the CJEU decided that posting a hyperlink to content that is made freely available on the internet by the copyright owner was permitted (it did not constitute a “communication to the public” as the public already had access to it). However, the question remained whether posting a link to content that is only available on the internet illegally would constitute copyright infringement.

This has now been answered. Sort of. In GS Media, the CJEU has decided that posting a link to third party content that is available on the internet without the rights holder’s consent may not infringe the rights holder’s copyright, as long as the person that posted the link does so without seeking financial gain and without knowledge that the works were published illegally in the first place.

It would appear that any publisher that publishes links for financial gain (whatever that means) would likely infringe copyright unless that work was posted originally with the consent of the rights holder or they can rebut the presumption that they knew or should have known that the content was posted illegally. This appears a tough threshold to meet.

The effect of this judgment remains to be seen, and the more one thinks about it, the more complex it appears. Publishers that post links to third party content on third party websites will need to be comfortable that the content they are linking to has been made available on that website with the owner’s consent and is freely available on the internet (i.e. not behind a paywall). Otherwise, there is a significant risk of copyright infringement. This will add to the clearance that those publishers will need to carry out.

The winners from this decision are rights holders (e.g. the sport, music and entertainment industries); once they notify the person posting the link that the content is on the internet without their authorisation, that person will likely be infringing their copyright if they fail to take their hyperlinks down.

If you have any queries, please contact David Deakin.