Case C-160/15, GS Media – Porn! Hyperlinked and Hyperleaked!

“Porn! Hyperlinked and Hyperleaked! Dutch Supreme Court Stymied! And now the EU Law Radar Report all you IP lawyers have been waiting for” Click for

Background
In October 2011, a 19-year old woman posed nude for Playboy. A few days later, Dutch television reported this and it broadcast a couple of the pictures. Why? The 19-year old was a Ms Dekker, who always wears clothes when on Dutch television.

On the same day as Dutch television broke this ‘news’, a Dutch news-and-scandal website had received a tip-off: apparently, 11 of the photographs could be seen via the Internet.

Also that day, the Dutch news-and-scandal website was contacted by a company called Sanoma. This was the company that had commissioned the photographer to take the photographs of Ms Dekker, and it had arranged for the photographs to appear in a future issue of Playboy. Therefore, Sanoma asked the Dutch website to prevent the pictures from being leaked.

Next day, the Dutch website ran the headline: ‘Fucking leaked! Pictures of [X] naked’. A caption then read: ‘And now the link to the pictures you have all been waiting for […] HHH EE RRR EEE.’

Clicking on the word ‘HHH EE RRR EEE’ took the viewer to the Australian ‘Filefactory’ website. On that site was another hyperlink, and clicking on it opened a window on the user’s computer screen displaying the words ‘Download now’. And clicking on that text opened a zip file of the eleven pdf-formatted files. Each file was a photograph of the 19-year old.

Aware of the link on the Dutch news-and-scandal website, Sanoma contacted not only the website but also the parent company, the Dutch media giant the “Telegraaf Media Group”, giving it until 6pm to confirm that the hyperlink had been removed from the website.

Although there was no formal response to the request, the Australian website subsequently removed the photographs. However, that was not the end of the matter.

On 1 November 2011, the 19-year old herself tweeted a link to a Mexican website where the photographs could be seen! Those photographs were subsequently removed.

On 7 November 2011, the Dutch news-and-scandal website informed its readers that it was now being sued by the nude 19-year old. The information concluded with this caption: ‘Update: still not seen the nude pics? They are HHH EE RRR EEE’. This time, the link was to the Imageshack website. Later, Imageshack removed the pictures at Sanoma’s behest.

By the middle of November 2011, the Dutch news-and-scandal website decided to put up a new caption: ‘Bye Bye Playboy Bye Bye’. Furthermore, in the “Forum Section” of the Dutch website, there were links to other Internet sites on which the photographs could be seen.

A writ arrived. The Dutch website was being sued by both the 19-year old and the photographer’s legal representative, Sanoma. They were claiming that the website had made a copyright-infringing publication contrary to the Dutch Copyright Act.

Before looking at the rest of the litigation history to this dispute, readers should know that the Dutch website at the heart of the controversy is that of ‘Geenstijl’. Its name is apt because the phrase ‘geen stijl’ roughly translates as ‘having no class or style’. For ease, I will refer to the website as GS.

At the Amsterdam District Court
Having heard the parties, the Amsterdam District Court agreed with Ms Dekker and Sanoma. The Amsterdam District Court’s reasoning ran as follows. The placing of the hyperlink on the GS website constituted the Dutch copyright-relevant act of publication. This concept had to be interpreted in light of the concept of ‘communication to the public’ that was enshrined in the EC’s InfoSoc Directive 2001/29.

The Amsterdam District Court then stated rather baldly: ‘From the case law of the CJEU, it appears that the assessment of whether there is a ‘communication to the public’ must take into account the circumstances of the case. Case law mentions a number of criteria that can play a role. Of particular importance is whether there is: an intervention, a (new) public, and the intention to make a profit.’ The court directed its mind to each element.

First, was there an intentional intervention? The court observed that ‘the placing of a hyperlink which refers to a location on the internet where a specific work is made available to the public is, in principle, not an independent act of publication. The factual making available to the public occurs on the website to which the hyperlink refers.’

However, the particular website with the photographs on it was not indexed by search engines. This meant that if Internet users wanted to see the pictures, they would have needed to have typed in the right URL. Thus, the court took the view that without GS’s intervention (the placing of the hyperlink on the GS website), the public would not have had access to the photographs. And since GS’s website received a quarter of million visitors every day, GS’s hyperlink ensured that the public knew about the photographs even before they had been published in Playboy.

Was GS’s intervention intentional? Yes. First, the hyperlink was displayed as, ‘HHH EE RRR EEE’. Second, there was also a sexually explicit caption which preceded the hyperlink. The first and second elements had been brought together under the heading: ‘Fucking leaked! Pictures of [X] naked’. In light of this, the District Court judges inferred that GS had intended to make its ‘intervention’.

Was there a ‘new’ public? Yes. Only a very small audience had known about the series of photographs. Only a couple of photographs of the series had been published. Thus, the placing of the hyperlink on the GS website enabled quite a large and indeterminate circle of people to know about the series of photographs. This was a public other than the one which the copyright holder had had in mind when it had given its consent for the publication of the photo story.

As to the profit motive, the District Court believed that this criterion was satisfied too. The placing of a link to the series of photographs was unmistakably for attracting visitors to the GS website and/or keeping their regular visitors. By GS’s own admission, GS had a commercial interest in serving up its readers a broad range of ‘rich and enriching’ reports. And the effect of the hyperlink on visitor numbers could also be inferred from the fact that the most-viewed topic in 2011 was the heading: ‘Fucking leaked!’ – a fact reported in GS’s very own ‘TOP 50 topics of 2011’. Therefore, the three judges in the Amsterdam District Court held that GS had placed the hyperlink on its website with the intention of making a profit.

At the Amsterdam Court of Appeal
The Amsterdam Court of Appeal overturned the District Court’s judgment. However, the reasoning it deployed was rather telegraphic. At paragraph 2.4.4, the Amsterdam Court of Appeal explained:

A person who puts a copyright protected work onto the internet in such a way that it is made accessible to the public (and thereby makes a communication to the public within the meaning of the InfoSoc Directive), is the person who makes this work available to the public, and thus publishes it. A hyperlink referring to a work published at another location is nothing much other than a footnote in either a book or an article in a periodical that refers to a different work which has already been published. In that case, giving a hyperlink is in principle not an independent means of publication or intervention.

At para 2.4.7, it decided:

Since it has not been established that the photographs on the [Australian website] have remained completely private, this court must proceed on the basis that a third party has published the pictures by placing them on [the Australian website], and that GS Media, although to a certain degree facilitating access to those photographs […], has not provided the public with a new channel of access, and thus has not intervened for the purposes of the CJEU’s case law….

The Amsterdam Court of Appeal went further. In so far as the photographs had been published by an unknown third party, it was the third party which had infringed not only the photographer’s copyrights but also the portrait rights of Ms Dekker and her privacy.

The Amsterdam Court of Appeal reasoned:

GS Media knew that the publication of the photographs by the aforementioned third party was tortious and had been obtained by illegal means. Not only could GS have known this from having received the photographs from someone obviously using a fictitious name, but also Sanoma had already informed them of this before GS had placed its link on its website. After the hyperlink had been placed on the GS website, Sanoma had demanded that the hyperlink be removed – something which GS Media had refused to do. Even after the [Australian website] had complied with Sanoma’s demands, GS Media had then placed a new link and had allowed its readers to place new links. There is nothing to suggest that without the help and support of GS Media, its audience would have been able to find the photographs by any simple means.

The three judges in the Amsterdam Court of Appeal concluded:

Placing the hyperlink was to a great degree facilitative and moreover the inclusion of the hyperlinks in the texts of the articles could only only be understood as encouraging the audience of the GS Media’s website to look at the illegally placed photographs. Seen in the round, GS Media had acted tortiously against Sanoma.

In other words, the Amsterdam Court of Appeal in part overturned the judgment of the Amsterdam District Court. GS had not infringed copyright in the photographs because the Australian website had already published them. However, GS was held to have acted tortiously against Sanoma for it had stimulated a demand amongst its readers, and it had also provided the hyperlink that made it very much easier for them to find the illegally-placed photographs, without which, looking at the pictures would have been a lot less simple.

At the Dutch Supreme Court
One of the Advocate Generals specialised in IP law gave his opinion to the Dutch Supreme Court. Outlining the relevant judgments from the CJEU and richly footnoting his opinion with Dutch legal commentary interpreting that case law, the upshot of his legal opinion was that the Dutch Supreme Court should make a reference to the CJEU.

The Dutch Supreme Court followed that advice in so far as it decided to make a reference to the CJEU in respect of just one particular aspect of the case, namely that dealing with hyperlinks.

The principle problem facing the Dutch court was whether, in light of the CJEU’s judgment in Svensson ECLI:EU:C:2014:24, the placing of a hyperlink constituted ‘a communication to the public’ for the purposes of Article 3 of the EU’s InfoSoc Directive?

On the subject of clickable links, the CJEU in Svensson had reasoned:

The first three questions
14 By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible.

15 In this connection, it follows from Article 3(1) of Directive 2001/29 that every act of communication of a work to the public has to be authorised by the copyright holder.

16 It is thus apparent from that provision that the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (see, to that effect, Case C‑607/11 ITV Broadcasting and Others [2013] ECR, paragraphs 21 and 31).

17 As regards the first of those criteria, that is, the existence of an ‘act of communication’, this must be construed broadly (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 193), in order to ensure, in accordance with, inter alia, recitals 4 and 9 in the preamble to Directive 2001/29, a high level of protection for copyright holders.

18 In the circumstances of this case, it must be observed that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works.

19 As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made 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 (see, by analogy, Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 43).

20 It follows that, in circumstances such as those in the case in the main proceedings, the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of that provision.

21 So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (SGAE, paragraphs 37 and 38, and ITV Broadcasting and Others, paragraph 32).

22 An act of communication such as that made by the manager of a website by means of clickable links is aimed at all potential users of the site managed by that person, that is to say, an indeterminate and fairly large number of recipients.

23 In those circumstances, it must be held that the manager is making a communication to a public.

24 None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).

25 In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

26 The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.

27 In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

28 Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

31 On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation.

32 In those circumstances, the answer to the first three questions referred is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public, as referred to in that provision.

This block of reasoning puzzled the Dutch Supreme Court. In respect of the ‘new public’ requirement, it was important that there was a public which had not been the one intended by the copyright holder when he had given his consent to the initial communication to the public. Support for that interpretation is to be found in paras 24 and 31 of the Svensson case.

However, the Dutch Supreme Court observed that the CJEU’s answer was formulated in such a way that it hinged on the fact that the work to which the link was made, was on a freely-available website. Accordingly, the CJEU had not needed to consider whether it was necessary for the right holder to have already consented to the work being made available. Hence, it had not considered a scenario in which no consent had been given and in which the issue of whether there was a new public could not have arisen.

The Dutch Supreme Court proceeded to consider the CJEU’s ’embedded’ hyperlink judgment in BestWater ECLI:EU:C:2014:2315 and the issue of whether an intervention reached a new public. The Dutch Supreme Court recalled that the CJEU in BestWater had explained:

15 S’agissant plus spécifiquement de l’insertion sur un site Internet, par un tiers, au moyen d’un lien Internet, d’une œuvre protégée ayant été déjà librement communiquée au public sur un autre site Internet, la Cour a jugé, au point 24 de l’arrêt Svensson e.a. (C‑466/12, EU:C:2014:76), que, étant donné qu’un tel acte de communication utilise le même mode technique que celui déjà utilisé pour communiquer cette œuvre sur cet autre site Internet, pour être qualifié de «communication au public» au sens de l’article 3, paragraphe 1, de la directive 2001, cet acte doit être effectué auprès d’un public nouveau.

16 Lorsque tel n’est pas le cas, notamment, en raison du fait que l’œuvre est déjà librement disponible pour l’ensemble des internautes sur un autre site Internet avec l’autorisation des titulaires du droit d’auteur, ledit acte ne saurait être qualifié de «communication au public» au sens de l’article 3, paragraphe 1, de la directive 2001/29 (voir, en ce sens, arrêt Svensson e.a., EU:C:2014:76, points 25 à 28).

In other words, embedded links were not a communication to the public if the work to which it was linked was neither displayed to a new public nor was reached by means of a special technology. The CJEU explained:

19 Eu égard à ce qui précède, il convient de répondre à la question posée que le seul fait qu’une œuvre protégée, librement disponible sur un site Internet, est insérée sur un autre site Internet au moyen d’un lien utilisant la technique de la «transclusion», telle que celle utilisée dans l’affaire au principal, ne peut pas être qualifié de «communication au public», au sens de l’article 3, paragraphe 1, de la directive 2001/29, dans la mesure où l’œuvre en cause n’est ni transmise à un public nouveau ni communiquée suivant un mode technique spécifique, différent de celui de la communication d’origine.

Yet the CJEU refers in para 16 to the consent of the right holder when it was discussing that there was no new public where the work had been put on another website with the consent of the right holder. Consequently, it was not clear to the Dutch Supreme Court what should be done where there was a communication to the public in circumstances where the work admittedly had already been published but without the consent of the right holder. Was there a communication to the public?

On the one hand, the CJEU’s case law on the concept of the communication to the public – which focuses on whether by means of a specific intervention the work reaches a public other than that of the one the right holder had in mind when he had granted his consent – is a body of case law that is consistent with the principle that a copyright holder has the exclusive right to commercially exploit his work.

On the other hand, if a work can already be found on the internet by the general public then the placing of a hyperlink to the actual place where that particular work is to be found does not, as a matter of fact, reach a new public. In that context, it was also worth bearing in mind that there was a very great amount of copyright works which could be found via the internet – works which had been published without the consent of the right holder. For a person running a website who wishes to insert a hyperlink to the place where the work can be found, it won’t always be a simple matter for them to determine whether a right holder has already consented to the work being published there.

In such circumstances, there was insufficient certainty about how the CJEU’s judgments in Bestwater and Svensson should be applied, which necessitated the Dutch Supreme Court asking the CJEU a question about this.

A further question arose in respect of the fact that without the placing of the hyperlinks on the GS website, the photographs would not have been found – or at least not so easily. The legal problem was this: at para 31 of its judgment in Svensson, the CJEU had talked of a ‘circumvention of restrictions’.

The Dutch Supreme Court wondered if – on the assumption that there was not already ‘an intervention’ through which the photographs were communicated to a new public because the right holder had not given his consent for the placing of the photographs on the Australian website (and had not otherwise already given his consent to the publication of the photographs) – then did the fact that the hyperlinks referred to a very specific URL, (thereby greatly facilitating the finding of otherwise difficult to find photographs), constitute what the ‘circumvention of restrictions’, or rather an ‘intervention’ whereby the photographs were nevertheless communicated to a new public?

The Dutch Supreme Court thought that the CJEU’s reasoning in Svensson and BestWater did not allow for that question to be answered with the requisite degree of certainty and so therefore decided to ask the CJEU about this too.

Questions Referred
My unofficial translation of the questions referred by the Dutch Supreme Court reads as follows:

1a. For the purposes of Article 3(1) of Directive 2001/29, is there a ‘communication to the public’ when someone other than the copyright holder uses a hyperlink on his website to refer to a third party’s website that is accessible to the general public using the internet, and upon which the work is made available without the consent of the right holder?

1b. Does the answer differ according to whether the work has not otherwise already been communicated to the public with the consent of the right holder?

1c. Does it matter whether the ‘hyperlinker’ is, or should have been, aware of the right holder’s lack of consent about the placing of the work on the third party’s website mentioned in Question 1a; and, if so, of the circumstance that the work has not otherwise already been communicated to the public with the consent of the right holder?

2a. If the answer to Question 1a is in the negative, then is there still a communication to the public (or can there be) if the website to which the hyperlink refers – and thus to the work – can admittedly be found by the general public using the internet, albeit not easily so that the placing of the hyperlink greatly facilitates the finding of the work?

2b. When answering Question 2a is it important that the ‘hyperlinker’ is, or should have been, aware of the fact that the website to which the hyperlink refers cannot be found easily by the general public using the internet?

3. Are there any other circumstances which must also be taken into account when determining whether there is a communication to the public where a hyperlink provides access to a work which has not already been communicated to the public with the consent of the right holder?

EU Law Radar Links to Earlier CJEU Citations

Update – 7 October 2015
The GS Media case has been mentioned in another ‘hyperlink’ case more recently made by a Dutch District Court; see further, Case C-527/15, Stichting Brein – copyright brain-teasers about media players.

Update – 11 January 2016
According to the Curia website, the GS Media case is to be heard by the Second Chamber on 3 February 2016.

Update – 6 March 2016
The Opinion of Advocate General Wathelet is due to be given to the Second Chamber on 7 April 2016.

Update – 12 August 2016
The judgment of the court is due to be handed down on 8 September.

Update – 8 September 2016
Judgment

A version of the CJEU’s judgment in Case C-160/15, GS Media ECLI:EU:C:2016:644 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

JUDGMENT OF THE COURT (Second Chamber)

8 September 2016 ( )

(Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Definition — Internet — Hyperlinks giving access to protected works, made accessible on another website without the rightholder’s consent — Works not yet published by the rightholder — Posting of such links for a profit)

In Case C‑160/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 3 April 2015, received at the Court on 7 April 2015, in the proceedings

GS Media BV

v

Sanoma Media Netherlands BV,

Playboy Enterprises International Inc.,

Britt Geertruida Dekker,

THE COURT (Second Chamber),

composed of M. Ilešič (Rapporteur), President of the Chamber, C. Toader, A. Rosas, A. Prechal, and E. Jarašiūnas, Judges,

Advocate General: M. Wathelet,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 3 February 2016,

after considering the observations submitted on behalf of:

–        GS Media BV, by R. Chavannes and D. Verhulst, advocaten,

–        Sanoma Media Netherlands BV, Playboy Enterprises International Inc. and Ms Dekker, by C. Alberdingk Thijm and C. de Vries, advocaten,

–        the German Government, by T. Henze and D. Kuon, acting as Agents,

–        the French Government, by D. Segoin, D. Colas and G. de Bergues, acting as Agents,

–        the Portuguese Government, by L. Inez Fernandes and T. Rendas, acting as Agents,

–        the Slovak Government, by B. Ricziová, acting as Agent,

–        the European Commission, by F. Wilman and T. Scharf and by J. Samnadda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 April 2016,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

2        The request has been made in proceedings between GS Media BV and Sanoma Media Netherlands BV (‘Sanoma’), Playboy Enterprises International Inc. and Ms Britt Geertruida Dekker (together, ‘Sanoma and Others’), concerning, inter alia, the posting on the GeenStijl.nl website (‘the GeenStijl website’), operated by GS Media, of hyperlinks to other websites enabling photographs of Ms Dekker, taken for Playboy magazine (‘the photos at issue’), to be viewed.

 Legal context

3        Recitals 3, 4, 9, 10, 23 and 31 of Directive 2001/29 state:

‘(3)      The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.

(4)      A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. …

(9)      Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. …

(10)      If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. … Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.

(23)      This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. …

(31)      A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. …’

4        Article 3 of that directive provides:

‘1. 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.

3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

5        According to Article 5(3) and (5) of that directive:

‘3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:

c)      reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author’s name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible;

5.      The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

6        At the request of Sanoma, which is the publisher of Playboy magazine, on 13 and 14 October 2011 the photographer, Mr C. Hermès, took the photos at issue, which were to be published in the December 2011 edition of that magazine. In that context, Mr Hermès granted Sanoma authorisation, on an exclusive basis, to publish those photos. He also granted Sanoma authorisation to exercise the rights and powers arising from his copyright.

7        GS Media operates the website GeenStijl, which includes, according to information provided by that website, ‘news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense’ and which is viewed daily by more than 230 000 visitors, making it one of the 10 most visited websites in the area of news in the Netherlands.

8        On 26 October 2011, the editors of the GeenStijl website received a message from a person using a pseudonym, which included a hyperlink to an electronic file hosted on the website Filefactory.com (‘the Filefactory website’), located in Australia and dedicated to data storage. That electronic file contained the photos at issue.

9        On the same day, Sanoma asked GS Media’s parent company to prevent the photos at issue being published on the GeenStijl website.

10      On 27 October 2011, an article relating to those photos of Ms Dekker, entitled ‘…! Nude photos of … [Ms] Dekker’, was published on the GeenStijl website, which included part of one of the photos at issue, and which ended with the following words: ‘And now the link with the pics you’ve been waiting for.’ By clicking on a hyperlink accompanying that text, users were directed to the Filefactory website, on which another hyperlink allowed them to download 11 electronic files each containing one of those photos.

11      On the same day, Sanoma sent GS Media’s parent company an email demanding that it confirm that the hyperlink to the photos at issue had been removed from the GeenStijl website. GS Media failed to respond to that demand.

12      However, at Sanoma’s request, the photos at issue appearing on the Filefactory website were removed.

13      By letter of 7 November 2011, counsel for Sanoma and Others demanded that GS Media remove from the GeenStijl website the article of 27 October 2011, including the hyperlink, the photographs it contained and the reactions of users published on the same page of that website.

14      On the same day, an article about the dispute between GS Media and Sanoma and Others about the photos at issue was published on the GeenStijl website. That article ended with the following sentence: ‘Update: Not yet seen the nude pics of [Ms. Dekker]? They are HERE.’ That announcement was, once again, accompanied by a hyperlink to access the website Imageshack.us where one or more of the relevant photographs could be viewed. The operator of that website, however, also subsequently complied with Sanoma’s request to remove them.

15      A third article, entitled ‘Bye Bye Wave Wave Playboy’, again contained a hyperlink to the photos at issue, appeared on 17 November 2011 on the GeenStijl website. Forum users of that website then posted new links to other websites where the photos at issue could be viewed.

16      In December 2011, the photos at issue were published in Playboy magazine.

17      Sanoma and Others brought an action before the rechtbank Amsterdam (Amsterdam District Court, Netherlands), claiming, in particular, that by posting hyperlinks and a cutout of one of the photos at issue on the GeenStijl website, GS Media had infringed Mr Hermès’ copyright and acted unlawfully towards Sanoma and Others. The rechtbank Amsterdam (Amsterdam District Court) largely upheld that action.

18      The Gerechtshof Amsterdam (Amsterdam Court of Appeal, the Netherlands) set aside that decision, finding that, by posting the hyperlinks on the GeenStijl website, GS Media had not infringed Mr Hermès’ copyright, since the photos at issue had already been made public before they were posted on the Filefactory website. In contrast, it found that, by posting those links, GS Media acted unlawfully toward Sanoma and Others, as visitors to that website accordingly were encouraged to view the photos at issue which were illegally posted on the Filefactory website. Without those hyperlinks, those photos would not have been easy to find. In addition, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) held that, by posting a cutout of one of the photos at issue on the GeenStijl website, GS Media had infringed Mr Hermès’ copyright.

19      GS Media brought an appeal against that judgment before the referring court, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).

20      Sanoma and Others brought a cross-appeal, in which they refer in particular to the judgment of 13 February 2014, Svensson and Others, (C‑466/12, EU:C:2014:76), claiming that the fact of making a hyperlink available to internet users to a website on which a work has been posted without the consent of the latter’s copyright holder constitutes a communication to the public. Sanoma and Others submit, moreover, that access to the photos at issue on the Filefactory website was protected by restrictions within the meaning of that judgment which internet users could circumvent through the intervention of GS Media and its GeenStijl website, so that those photos have been made available to a wider public than the public which would normally have accessed those photos on the Filefactory website.

21      In the context of examining that cross-appeal, the referring court considers that it cannot be inferred with sufficient certainty either from the judgment of 13 February 2014, Svensson and Others, (C‑466/12, EU:C:2014:76) or from the order of 21 October 2014, BestWater, (C‑348/13, not published, EU:C:2014:2315) whether there is a ‘communication to the public’ if the work has in fact previously been published, but without the consent of the copyright holder.

22      On the one hand, it follows from that case-law of the Court that it must be established whether the intervention at issue enables a public to be reached which cannot be considered to have been included in the public for which the rightholder had previously given his consent, which is consistent with his exclusive right to exploit the work. On the other hand, if a work is already available on the internet for the general public, posting a hyperlink to the website on which the work is already posted will result in virtually no new public being reached. Furthermore, the fact that there are many works on the internet that have been communicated to the public without the rightholder’s consent must also be taken into account. For the operator of a website it will not always be easy to check, if he intends to post a hyperlink to a website on which a work appears, that the rightholder has consented to the earlier posting of that work.

23      The referring court further observes, moreover, that the cross-appeal also raises the question of the conditions that must be met if they are to constitute ‘restrictions’ within the meaning of the judgment of 13 February 2014, Svensson and Others, (C‑466/12, EU:C:2014:76). That court points out, in that regard, that the photos at issue were not impossible to find on the internet before GS Media posted the hyperlink on the GeenStijl website, without however being easy to find, so the fact of posting that link on its site greatly facilitated access to those photos.

24      In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1.      (a)   If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29?

(b)      Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way?

(c)      Is it important whether the ‘hyperlinker’ is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?

2.      (a)   If Question 1 is answered in the negative: If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?

(b)      In answering question 2(a), is it important whether the “hyperlinker” is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?

3.      Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?’

 Consideration of the questions referred

25      By its three questions, which should be examined together, the referring court asks, in essence, whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

26      In that context, it raises the question of the relevance of the fact that the works in question have not yet been published in another way with the consent of that rightholder, that providing those hyperlinks makes it much easier to find those works, given that the website on which they are available is not easily findable by the general internet public, and that whoever posts those links knew or ought to have been aware of those facts and the fact that that rightholder did not consent to the publication of the works in question on that latter website.

27      It follows from Article 3(1) of Directive 2001/29 that Member States are to 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.

28      Under that provision, authors thus have a right which is preventive in nature and allows them to intervene, between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such use (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 75, and 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 30).

29      As Article 3(1) of Directive 2001/29 does not define the concept of ‘communication to the public’, its meaning and its scope must be determined in light of the objectives pursued by that directive and of the context in which the provision being interpreted is set (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraphs 33 and 34, and 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 184 and 185).

30      In that regard, it should be borne in mind that it follows from recitals 9 and 10 of Directive 2001/29 that the latter’s objective is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that ‘communication to the public’ must be interpreted broadly, as recital 23 of the directive indeed expressly states (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 186, and 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 20).

31      At the same time, it follows from recitals 3 and 31 of Directive 2001/29 that the harmonisation effected by it is to maintain, in particular in the electronic environment, a fair balance between, on one hand, the interests of copyright holders and related rights in protecting their intellectual property rights, safeguarded by Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information, safeguarded by Article 11 of the Charter, and of the general interest.

32      As the Court has previously held, the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgments of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraph 16; 19 November 2015, SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 15; and 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 37).

33      The Court has, moreover, specified that the concept of ‘communication to the public’ requires an individual assessment (see judgment of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 29 and the case-law cited, relating to the concept of ‘communication to the public’, for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28), it having the same scope in that directive as in Directive 2001/29 (see, to that effect, judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 33)).

34      For the purposes of such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another (judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 79; 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 30; and 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 35).

35      Of those criteria, the Court emphasised, in the first place, the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 82 and the case-law cited, and 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 31).

36      In the second place, it specified that the concept of the ‘public’ refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people (see, to that effect, judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 84 and the case-law cited, and 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 33).

37      Moreover, it is settled case-law of the Court that, to be categorised as a ‘communication to the public’, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work (judgment of 13 February 2014, Svensson and Others, C‑466/12, ECLI:EU:C:2014:76, paragraph 24, and order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraph 14 and the case-law cited).

38      In the third place, the Court has held that it is relevant that a ‘communication’, within the meaning of Article 3(1) of Directive 2001/29, is of a profit-making nature (see, to that effect, judgments of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 204; 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 88; and 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 36).

39      It is in the light, in particular, of those criteria that it is to be assessed whether, in a situation such as that at issue in the main proceedings, the fact of posting, on a website, a hyperlink to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

40      In that regard, it should be recalled that, in the judgment of 13 February 2014, Svensson and Others, (C‑466/12, EU:C:2014:76), the Court interpreted Article 3(1) of Directive 2001/29 as meaning that posting hyperlinks on a website to works freely available on another website does not constitute a ‘communication to the public’ as covered by that provision. That interpretation was also adopted in the order of 21 October 2014, BestWater International, (C‑348/13, not published, EU:C:2014:2315) about such links using the technique known as ‘transclusion’ (‘framing’).

41      However, it follows from the reasoning of those decisions that, by them, the Court intended to refer only to the posting of hyperlinks to works which have been made freely available on another website with the consent of the rightholder, the Court having concluded that there was no communication to the public on the ground that the act of communication in question was not made to a new public.

42      In that context, it noted that, given that the hyperlink and the website to which it refers give access to the protected work using the same technical means, namely the internet, such a link must be directed to a new public. Where that is not the case, in particular, due to the fact that the work is already freely available to all internet users on another website with the authorisation of the copyright holders, that act cannot be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Indeed, as soon as and as long as that work is freely available on the website to which the hyperlink allows access, it must be considered that, where the copyright holders of that work have consented to such a communication, they have included all internet users as the public (see, to that effect, judgment of 13 February 2014, Svensson and Others, EU:C:2014:76, paragraphs 24 to 28, and order of 21 October 2014, BestWater International, C‑348/13, not published, EU:C:2014:2315, paragraphs 15, 16 and 18).

43      Accordingly, it cannot be inferred either from the judgment of 13 February 2014, Svensson and Others, (C‑466/12, EU:C:2014:76) or from the order of 21 October 2014, BestWater International, (C‑348/13, not published, EU:C:2014:2315) that posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. Rather, those decisions confirm the importance of such consent under that provision, as the latter specifically provides that every act of communication of a work to the public is to be authorised by the copyright holder.

44      GS Media, the German, Portuguese and Slovak Governments and the European Commission claim, however, that the fact of automatically categorising all posting of such links to works published on other websites as ‘communication to the public’, since the copyright holders of those works have not consented to that publication on the internet, would have highly restrictive consequences for freedom of expression and of information and would not be consistent with the right balance which Directive 2001/29 seeks to establish between that freedom and the public interest on the one hand, and the interests of copyright holders in an effective protection of their intellectual property, on the other.

45      In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.

46      Furthermore, it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.

47      For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder.

48      Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention.

49      In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

50      The same applies in the event that that link allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers, the posting of such a link then constituting a deliberate intervention without which those users could not benefit from the works broadcast (see, by analogy, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 27 and 31).

51      Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.

52      However, if there is no new public, there will be no communication to the ‘public’ within the meaning of that provision in the event that, referred to in paragraphs 40 to 42 of the present judgment, the works to which those hyperlinks allow access have been made freely available on another website with the consent of the rightholder.

53      Such an interpretation of Article 3(1) of Directive 2001/29 provides the high level of protection for authors sought by that directive. Indeed, under that directive and within the limits set by Article 5(3) thereof, copyright holders may act not only against the initial publication of their work on a website, but also against any person posting for profit a hyperlink to the work illegally published on that website and, under the conditions set out in paragraphs 49 and 50 of the present judgment, against persons having posted such links without pursuing financial gain. In that regard, it should in particular be noted that those rightholders, in all cases, have the possibility of informing such persons of the illegal nature of the publication of their work on the internet and of taking action against them if they refuse to remove that link, and those persons may not rely upon one of the exceptions listed in Article 5(3).

54      As regards the case in the main proceedings, it is undisputed that GS Media operates the GeenStijl website and that it provided the hyperlinks to the files containing the photos at issue, hosted on the Filefactory website, for profit. It is also undisputed that Sanoma had not authorised the publication of those photos on the internet. Moreover, it appears to follow from the presentation of the facts, as they result from the order for reference, that GS Media was aware of that latter fact and that it cannot therefore rebut the presumption that the posting of those links occurred in full knowledge of the illegal nature of that publication. In those circumstances, it appears that, subject to the checks to be made by the referring court, by posting those links, GS Media effected a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, and it is unnecessary to assess in that context the other circumstances referred to by that court, referred to in paragraph 26 of the present judgment.

55      Having regard to the foregoing considerations, the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.

 Costs

56      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.

[Signatures]


Language of the case: Dutch.

 

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