Dirty links, porn previews without permission (Opinion of AG Wathelet in C-160/15, GS Media v Sanoma)

By Justin Jütte

Hyperlinking is one of the most important mechanisms that make the Internet workable and helps users to find and access information more easily. However, hyperlinking has come under scrutiny in the light of the provisions of the EU copyright rules. In the present case, the CJEU is being asked under which circumstances links to infringing material constitute a communication to the public. The request for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is part of a growing body of case-law on the interpretation of Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC). This post discusses the AG’s interpretation of the right of communication to the public in relation material which is made available on the Internet without the consent of the rightholder.

 Facts

In October 2011 a hyperlink was posted on the Dutch website GeenStijl, which is operated by GS Media. The link directed the reader to an Australian website (www.filefactory.com) from which a file could be downloaded that contained naked pictures of Dutch celebrity Britt Dekker made as part of a Playboy photoshoot. A cutout of the pictures was also posted on GeenStijl in the context of an accompanying article.

The photographs were taken by Mr Hermès, whose rights in the images are represented by GS media. GS Media refused to remove the hyperlink after being asked to do so by Sanoma, but the pictures were taken down from the Australian site. A few days later, in early November 2011, another link appeared on GeenStijl directing the user to another site (www.imageshack.us). The operators of this website also complied with Sanoma’s request to remove the images. After a third link was posted to GeenStijl users posted additional links on the website.

Sanoma, together with Playboy and Ms Dekker sued GS Media for copyright infringement. Sanoma won in first instance, but the judgment was set aside by the appeal court. Both parties appealed the decision to the Supreme Court of the Netherlands, which submitted three questions to the CJEU.

 

Questions

The questions referred to the CJEU by the Dutch Supreme Court relate only to the hyperlinks posted by GeenStijl, and neither to the images posted by the websites that the links led to, nor to the cutout in the article that accompanied the hyperlinks. The referring Court submitted three questions which can be summarized as follows:

  • Does it constitute an ‘act of communication to the public’ when somebody other than the copyright holder links to a third-party website, which contains images that have been made available without the consent of the right holder?
  • Does it constitute a communication to the public if the hyperlink significantly facilitates access to the work by making it more “findable”?
  • Are there, in such circumstances, any other criteria to be taken into consideration to assess whether a communication to the public took place?

 

Analysis

All three questions relate to the interpretation of Article 3(1) of the InfoSoc Directive, which is the centerpiece of the EU copyright acquis. The directive provides for three distinct rights, which are, besides the right to communication to the public, the reproduction right (Article 2) and the distribution right (Article 4). Article 3(1) reads:

“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Is setting a hyperlink an ‘act of communication’?

The first question relates to the first criterion under Article 3(1) as developed by the jurisprudence of the CJEU. In order to establish an act of communication to the public there must be an act of communication.

With reference to Recital 23 of the Directive and Circus Globul Bucureşti the AG clarifies that such an act requires a transmission or a retransmission of a work, a requirement which should, however, be interpreted broadly. Here, AG Wathelet argues, as the Court has done many times before in interpreting the InfoSoc Directive, that its provisions must be interpreted to ensure a high level of protection for right holders (see also Recitals 4 and 9).

The Advocate General adds, however, which is a novel argument in the case-law of the Court, that a broad understanding of the right under Article 3(1) serves to safeguard a flexible interpretation of its scope in the light of technological developments (para. 50). Therefore, the term ‘transmission’ or ‘retransmission’ must not be limited to such acts in the strict technical sense, but, pursuant to Svensson v Retriever Sverige, also includes acts that make works “available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity”.

However, contrary to Svensson, the AG argues that a hyperlink does not constitute an act of communication because it does not ‘make available’ a work but merely helps to find it on the Internet. Going back to FAPL/Murphy, the Advocate General argues that the act of communication must be indispensable to give others access to the works in question. A hyperlink that facilitates access to a work would merely facilitate access, and therefore does not constitute an act of communication (paras. 54-9).

The AG also makes reference to SGAE v Rafael Hoteles and Svensson with regard to the indispensability of the communication to a new public (para. 58). This argument might be slightly misplaced as the Court in this case established the criterion of “a new public” rather than interpreting the term transmission (see also SCF v Marco del Corso). Nevertheless, the AG finds that a hyperlink, such as the one in the main proceedings, which only facilitates access to works but is not “vital or indispensable” for that access, does not constitute an act of communication.

What constitutes a ‘new public’?

In relation to the second criterion under Aricle 3(1) InfoSoc the AG recalls FAPL/Murphy and Svensson, in both of which the Court had argued that a “new public” is a group of individuals other than that for which the initial act of communication to the public was authorized. In the absence of an initial authorization according to the Advocate General there could not be such an act (paras. 66-8). It is to note that in SGAE v Rafael Hoteles, the Court had not yet relied on this narrow interpretation. But even if there were to be a “new public”, the AG continues to argue, the fact that the act of communication was not indispensable for other users to get access to the images would speak against the existence of a new public (paras. 69-70). These findings, he qualifies, are applicable in cases when a hyperlink refers to sites which are freely accessible to the general public on parties operated by third persons. If there were certain restrictions to the access to the pictures, his finding might have been different. Such an act of communication would be indispensable to give users access to certain works and would therefore constitute a communication to a (new) public (paras. 71-2).

Any other requirements?

The AG rejects any other requirements for the interpretation of Article 3(1), which would unnecessarily extend the scope of the right of communication to the public (paras. 76-7). He underlines that an extended scope of that provision “would significantly impair the functioning of the Internet” while undermining the purpose of the InfoSoc Directive, which is to “to foster the development of the information society in Europe.” (Recital 2) In situations dissimilar to the facts of the main proceedings any further requirements would create legal uncertainty. Users could not always verify whether hyperlinks do indeed direct users to works which initial communication to the public was authorized by the copyright owner. A stricter interpretation of Article 3(1) would, according to AG Wathelet, require the intervention of the EU legislator (paras. 78-9).

Remedies for infringements

The Opinion also discusses alternative options for remedies that are available under EU law. Without adding something revolutionary, he pointed out that copyright owners could apply for injunctions against intermediaries pursuant to Article 8(3) of the InfoSoc Directive and Article 11 of the IP Enforcement Directive (Directive 2004/48/EC). He adds that these injunctions relate to “the initial communication to the public which infringes copyright and, in [his] view, [are] a direct and appropriate remedy for that infringement.” This interpretation goes against established case-law (LSG v Tele2 and UPC Telekabel v Constantin, see also Mc Fadden v Sony Music, as discussed on this Blog) which has traditionally interpreted the notion of intermediary rather widely by allowing injunctions also against subsequent communications to the public.

Comment

First, it is noteworthy that this is, after a long time, a case on hyperlinking which required the intervention of an Advocate General; both Svensson and BestWater had been rendered as Judgment and Order respectively without an opinion of an AG. It is also noteworthy that the AG relies heavily on the only Grand Chamber judgement (FAPL/Murphy) among the cases that interpreted Article 3(1).

The two most critical points of AG Wathelet’s Opinion are his interpretation of an ‘act of communication’ and the role a ’new public’ plays in interpreting Article 3(1) InfoSoc. As to the former, he departs from the line of arguments that an act of communication must merely provide access to a work protected by copyright. He substitutes this requirement with an ‘interventionist’ approach, pursuant to which an act of communication must be indispensible to give users access to protected works. Concerning the ‘new public’ criterion the AG opined that it would only be applicable in cases where the first act of communication (to an initial public) has taken place with the consent of the copyright holder, reserving this criterion for cases of legally posted content. In the alternative, he falls back on his interventionist approach, suggesting that hyperlinks to illegally posted content do not fall within the scope of Article 3(1) because the content could also be accessed otherwise.

In arguing so, the AG established a new meta-criterion of “indispensability”, under which an act of communication to the public takes place when users could not gain access to works if it was not for that particular intervention; a mere facilitating intervention would not suffice. Such a standard could easily replace the more complicated two-tier analysis the Court has pursued since SGAE v Rafael Hoteles and would facilitate the interpretation of Article 3(1) significantly. The route to this interpretation is, however, dangerous. The AG combines elements of both criteria to come to his conclusion, an exercise which is not necessarily systematically sound. In particular his connection between the requirement of accessibility in SGAE v Rafael Hoteles and that in Svensson could be too daring, considering the different fact patterns of both cases.

The findings of the AG are, however, to be welcomed. The AG answers the question whether liking behind a paywall, or in order to circumvent any other technical access restriction, falls within the scope of the right of communication to the public. In such cases, links that give users access to content which they would not enjoy without such intervention fall within the scope of Article 3(1) InfoSoc Directive. At first sight, the seemingly unnecessary comments on the role of intermediaries and the addressees of an injunction (pursuant to Article 8(3) InfoSoc and Article 11 of the IP enforcement Directive) can easily be ignored as they are immaterial to the outcome of the case. These remarks do, however, provide consolation for rightholders. In the absence of a direct infringement they can request injunctions against those intermediaries that hosted the infringing pictures

If the CJEU were to follow the arguments and findings of AG Wathelet this would upset the current interpretation of the right to communication to the public. Although with little practical effect, the systematic approach to interpreting Article 3(1) would change significantly. While safeguarding the free circulation of information on the Internet, the ‘indispensability’ approach sets reasonable limits to hyperlinking. If the CJEU will indeed follow remains to be seen, but its decision will also have implications on two other pending cases (C-527/15 and C-610/15) that deal with the question whether hyperlinking to works which have been published without the authorization of the respective rightholder. Interestingly, the latter case the referring court also inquires what kind of injunctions can be ordered against intermediaries that facilitate copyright infringements. The hyperlinking story of the CJEU is far from over and will keep the Court busy in the months – and possibly years – to come.

4 comments

  1. Tradejack

    “porn previews”? If I didn’t know better, I would call this headline shameless clickbaiting from the European Law Blog…

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