'Playboy' judgement restricts the freedom to link

A recent judgement made by the European Court of Justice (ECJ) has restricted the use of links on the World Wide Web. If you link accessible online content, you could actually be committing copyright infringement. With this ruling, the ECJ has, in fact, contradicted the Advocate General’s recommendation. The Opinion of the 7th of April 2016 ruled that posting hyperlinks isn’t a punishable offence:

Quote

'According to Advocate General Wathelet, the posting of a hyperlink to a website which published photos without authorisation does not in itself constitute a copyright infringement.'

Wathelet pointed out how important hyperlinks are for making the internet function better and are an effective way of informing society. However, the Opinion of the Advocate General is not binding in the European Court of Justice.

ECJ: Links may infringe on copyright

The hyperlink could end up counting as 'communication to the public'. The judgement went to the Second Chamber of the European Court of Justice on 8th September 2016.

A specific case study is the Dutch gossip blog, GeenStijl ('No style'), operated by GS Media. The blog reported about the Playboy shoot featuring TV star Brit Dekker and included a link in its article. This link contained unlicensed copies of the nude shots. When the site was shut down, the GeenStijl operators swapped the link with another unlicensed image source, which then caused the Finnish media company, Sanoma, (which publishes Playboy in the Netherlands) to file a complaint.

Although the ECJ basically agrees with the assessment of the Advocate General, Melchior Wathelet, it is not easy for private internet users to see whether an openly accessible work has been published in a watertight way, legally speaking. Commercial website operators, however, are expected to check the copyright.

Commercial providers must check copyright infringement

The ECJ doesn’t fundamentally challenge link culture on the internet, however, it’s clear that boundaries have been set when it comes to the 'Playboy' case. According to the judges, these are then exceeded if a hyperlink is considered as an unauthorised communication to the public. According to copyright, this link belongs to the author and can only be used with licensing rights.

Whether a hyperlink linking to online content falls under the concept of 'communication to the public' depends on various conditions according to the press release issued by the ECJ:

  • The first thing is to check whether the website operator has intentionally linked to the unauthorised content. This is only ok for private internet users to do if they explicitly point out that the content is unauthorised.
  • Commercial website operators, unlike private internet users, can’t plead ignorance when it comes to linking to unauthorised web content. As soon as a hyperlink is placed in an article for financial gain, the website operator is required by the ECJ to examine whether the web content may have been published without the copyright owner’s consent.

Effects of the ECJ ruling

In specific cases, the ruling of the European Court of Justice concerns the commercial use of hyperlinks related to circumstances in which website operators have linked to unauthorised content a second time. The effects of the ECJ ruling go beyond individual cases.

The European Court of Justice also deals with the blogger community where links are frequently used, but only when there’s a lot of uncertainty as to whether they are bordering on copyright infringement or not. There have been discussions as to what counts as financial gain when it comes to hyperlinks. The ECJ doesn’t have any general guidelines.

This could be a disaster for blogs since website operators will be less inclined to post links to other websites as they don’t want to go to the trouble of checking the copyright. Bloggers, who don’t make much money with their website content, won’t find the hassle worth their while. If this is the case, the only possibility is to leave the link in question out of the post.

The ECJ judgement was criticised by IT expert, Thomas Stadler, who raised the question of how journalistic websites, which are generally commercialised, should ensure they’re following the ECJ requirements. Instead of making jurisdiction dependent on a case-by-case comparison, which primarily takes into account possible financial gain, he should have taken into account 'those who link specifically to copyright-infringing content as an accomplice or participant of the copyright infringement'.

This article on YouTube copyright explains that the video platform is full of copyright infringement. The material used in the videos themselves might be copyrighted so it’s difficult to know if they are even allowed to be uploaded to the video platform, let alone whether you can link to them in your blog post. It is presumed that the blogger has checked that the content isn’t copyrighted before embedding the video in their post.

It is assumed that the ECJ ruling will lead to a discussion to determine the precise distinction between commercial and non-commercial use of copyrighted works. If the legislature is based on the ECJ ruling and the private use of online content is not motivated by profit, this could provide answers to a number of previously unresolved copyright-related issues.

Update: LG Hamburg implements the ECJ judgement then backtracks

The Regional Court in Hamburg was one of the first courts to implement the controversial ECJ judgement in a legal dispute. It was, however, difficult to decide whether the site in question intended to make a profit: the decisive factor for the Hamburg court was not whether the link itself was trying to make money, but whether the linked websites were being operated with commercial intent.

This was an opinion that the judges didn’t hold for too long. Only six months later, the same chamber of the Hamburg Regional Court ruled in another case that providers of commercial websites may not be required to check links solely on the basis of whether they intend to make a profit. It also depends on whether the research is worth it.

In the judgement, the court rules that the operator of an Amazon partner program with around 15,000 affiliate links to the sales platform could not be expected to research all the links since many of them are automated and are the result of special algorithms. Therefore, the Hamburg Regional Court dissociated itself from its own jurisdiction only a few months after the controversial decision.

Not only does this leave the question open about what counts as intent to make a profit, but also the circumstances as to when researching outbound links to third-party sites is no longer worth it or is too time-consuming.