The European court ruled in Case C‑160/15 GS Media BV versus Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker. The case concerns the following:
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.
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.
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.
On the same day, Sanoma asked GS Media’s parent company to prevent the photos at issue being published on the GeenStijl website.
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.
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.
However, at Sanoma’s request, the photos at issue appearing on the Filefactory website were removed.
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.
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.
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.
In December 2011, the photos at issue were published in Playboy magazine.
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.
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.
GS Media brought an appeal against that judgment before the referring court, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).
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.
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.
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.
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.
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?’
The Court’s decision:
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.