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

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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.