Link Liability – Decision of the Court of Justice of the European Union (EuGH)

Are you liable for links to unlawful content or not? The Court of Justice of the European Union has now taken a position on this.

The decision is based on proceedings in the Netherlands.

The legal dispute concerns Sanoma, the publisher of Playboy, and the company GS Media. It had published hyperlinks on a website it operated that made it possible to view illegally copied photographs of Ms Britt Geertruida Dekker that had been taken for Sanoma (Playboy).

Sanoma requested that GS Media remove the hyperlink, which it refused. After the Australian website removed the images at Sanoma's request, GS Media found another source to link to. This source was also shut down by Sanoma, whereupon GS Media found further sources and linked to them.

Sanoma then sued GS Media for copyright infringement. By setting the hyperlinks, GS Media had made it enormously easier to find the content, which was not easily discoverable.

The Advocate General to the Court of Justice of the European Union (EuGH) Melchior Wathelet took the view in his submissions that links to freely accessible websites do not constitute a copyright-relevant public communication, since the linked content has already been made publicly available.

The decision of the Court of Justice of the European Union (EuGH) on link liability

The Court of Justice of the European Union (EuGH) did not follow the submissions of the Advocate General and ruled in favour of Sanoma.

Withjudgment of 08.09.2016 – Az. C-160/15the Court of Justice of the European Union (EuGH) decided that setting a link can constitute a public communication and thus a copyright infringement.

The Court is of the opinion that this is the case when corresponding hyperlinks are provided with the aim of generating profit. Knowledge of the unlawfulness of the publication is then presumed. This is because it can be expected of the person who set the hyperlinks to carry out the necessary checks to ensure that the work in question has not been published without authorisation on the website to which the hyperlinks lead.

It is also to be regarded as a public communication if the person who set the link knew or should have known that the hyperlink set by him provides access to a work published without authorisation on the Internet, in particular if he has been made aware of this by the copyright holder.

Conclusion

According to the opinion of the Court of Justice of the European Union (EuGH), links are of great importance for freedom of opinion and the exchange of information. However, the Court of Justice of the European Union (EuGH) has set limits with this judgment that should also be observed in Germany in the future.