The EU Court of Justice has ruled that posting of hyperlinks to illegally published content can be considered a copyright violation under certain circumstances. The case in question concerns the posting of links on the Dutch website GeenStijl to photos from the magazine Playboy, published by Sanoma, on a third-party website without authorisation from Sanoma. The Dutch High Court asked for the EU court's opinion on whether placing the hyperlinks could be considered copyright infringement.
The EU Court notably disagreed with its advocate general's earlier opinion, saying that in certain circumstances hyperlinks could be considered 'communication to the public', a key criteria in determining whether a publication is copyright protected. In this case, the court said the fact that GS published the photos as part of its commercial business and that it was aware the content on the third-party sites was illegal means the Dutch site also violated copyright with its hyperlinks. 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 court said.
The court underlined that each case must be assessed individually on whether it constitutes a communication to the public. Criteria include whether the person posting the links is aware of the consequences of his or her actions, the size of the public the posting reaches and whether it was for profit-making purposes. It would not consider the communication public if the hyperlinking is not for commercial purposes or the person creating the links could not be expected to know whether the material was copyright protected or the other site had legal authorisation for publication.
