Featured here is a summary of an article written by Tito Rendas, lecturer and researcher in copyright law at Universidade Católica Portuguesa (Lisbon). The full article, with the title “How Playboy photos compromised EU Copyright Law: The GS Media judgment”, is available for download here.
The latest installment in the hyperlinking saga was the CJEU’s preliminary ruling in the GS Media case. Dutch blog GeenStijl.nl, operated by GS Media B.V., featured an article containing a hyperlink to a cloud storage website where a number of Playboy photos of a Dutch TV celebrity had been made available. The photos had been published online without the rightholder’s authorization and prior to their publication on paper.
The case reached the Hoge Raad, which decided to stay the proceedings and refer a series of questions to the CJEU. The crucial question was whether there is a communication to the public, under article 3(1) of the Information Society Directive, when someone other than the rightholder hyperlinks to a freely accessible website where the protected work is available without the rightholder’s consent.
In his opinion, AG Wathelet proposed to answer the question in the negative. Wathelet’s proposal would have allowed the attainment of the legendary fair balance between the various interests involved.
On the one hand, it would have preserved the Internet as a privileged vehicle for the exercise of the freedoms of expression and information. In an era in which untold amounts of content are available online, hyperlinks are fundamental to guide the user to the informational resources that are of interest to her. The regulation of hyperlinking acts thus deserves maximum prudence – and prudence is exactly the main trait of the interpretation proposed by Wathelet, which restricts copyright law’s intervention in the hyperlinking domain.
On the other hand, this interpretation would not leave rightholders totally unprotected. After all, the initial act of making the work available online would not cease to constitute a violation of the exclusive right of communication to the public. The rightholder could always initiate proceedings against the person who had illegally made that initial communication.
Notwithstanding the judiciousness of Wathelet’s opinion, the Court chose to follow an alternative path, creating a twofold juris tantum presumption of knowledge. The trigger of this presumption lies in the profit-making nature of the act of hyperlinking.
If the hyperlink was not posted for profit, it must be presumed that the website operator did not know and could not reasonably know that the work had been uploaded without the rightholder’s authorization. This presumption can be rebutted. Differently, if the hyperlink was posted for profit – like in the GS Media case –, the opposite presumption applies: in the CJEU’s words, “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” (para. 51). This, too, is a rebuttable presumption: the hyperlinker may demonstrate that she was not aware or could not reasonably be aware of the lack of authorization for the initial act of making available.
One cannot help but feel that this creative move by the CJEU was an attempt at rendering a Solomonic judgment. Instead of merely threatening to split the baby, however, the CJEU did cut the tiny tot in two. The Court could (should) have followed AG Wathelet’s opinion, holding that hyperlinking involves no act of communication. This would have ended the hyperlinking saga in the EU in a balanced, truly Solomonic way: users would be allowed to hyperlink without restrictions and rightholders would always have the possibility to act against the initial uploader of the work. Instead, the Court opted to create a presumption of knowledge, doing away with strict liability on this issue.
The result of this presumption is a net cast too wide. It certainly catches bad faith users – websites like GeenStijl.nl, which rely on leaks of protected works to make a profit and which seem to be, in general, fully knowledgeable of the lack of rightholders’ authorization. However, websites where hyperlinks are posted with their operators being wholly ignorant as to the illegal character of the upload can also be caught in this net. Think of a regular, well-intended blog the content of which is monetized by the showing of some ads. Is this enough for the hyperlink to be considered as posted for profit? If the answer is yes, these users will face a probatio diabolica of sorts, for they will have to provide evidence that they did not know of the lack of authorization in order to rebut the presumption.
This will have evident chilling effects on website operators and Internet users in general. The onus of verifying the existence of such authorization before providing a hyperlink is likely to inhibit users from hyperlinking, out of fear of facing legal action for infringing the right of communication to the public. Hyperlinking, as a facilitating tool for the dissemination of information, will thus be under threat.
At first glance, this long-awaited judgment appears to reasonably accommodate the interests of rightholders and users alike. But appearances can be deceiving. Under the guise of a Solomonic judgment, this decision will have negative effects for our ability to access and exchange information in the online world.