Liability for Hyperlinks?

The Regional Court (LG) Hamburg was the first German court to implement the case law of the Court of Justice of the European Union (EuGH) on the liability of a website operator for hyperlinks and ordered a website operator to cease such activity.

By judgment of 08.09.2016 (Az C-160/15) the Court of Justice of the European Union (EuGH) decided that setting a link could constitute a copyright infringement if the corresponding hyperlinks are provided with the intention of making a profit.

This judgment has now been implemented for the first time by the Regional Court (LG) Hamburg in the context of summary proceedings.

A photographer, whose photograph was used in an online article without his consent, demanded a cessation of the infringement. The photograph was admittedly subject to a free Creative Commons licence, but had been modified in breach of the licence without indicating this. Furthermore, the photographer had also not been named as the author in an appropriate manner.

The photographer did not proceed against the operator of the website on which the photograph was visible, but instead against a third party on whose website a corresponding hyperlink was set.

Court Decision – Hyperlink Prohibited

By order of 18.11.2016 – 310 O 402/16 the Regional Court (LG) Hamburg prohibited the website operator from setting a hyperlink to the copyright-infringing publication of the photograph.

By setting the hyperlink, the exploitation rights of the photographer were infringed. The website contained a public communication of the modified version of the original work. This modification is not a free use; therefore, its public communication is dependent on the consent of the photographer.

The linking to the public communication of the modified version is in turn a separate public communication of this modified version within the meaning of the case law of the Court of Justice of the European Union (EuGH).

The court saw the criterion of profit-making intent drawn upon by the Court of Justice of the European Union (EuGH) as fulfilled. This criterion serves to distinguish whether it is reasonable to expect the person setting the link to carry out investigations into the legal status with regard to the linked website. However, this reasonableness depends solely on whether the website as a whole is operated with the intention of making a profit.

Conclusion

Mere linking to photographs published in breach of copyright constitutes, according to this decision, a separate copyright infringement. This applies in particular when the website operator setting the hyperlink acts with the intention of making a profit.