Hyperlink to the Danger Zone

Friday 16th September 2016

Copyright is the right that protects photographs, musical recordings, and literary works such as books. It gives the copyright owner the right to distribute copies of that work to the public.  Distribution of copyright works without the owner’s permission will be an infringement of the copyrights, entitling the owner to bring proceedings for damages and an injunction.

A recent ruling in the European Court of Justice has had to address whether the use of hyperlinks directing viewers to photographs posted on a third party website without the copyright owner’s consent, was an infringement of the copyrights in the photographs.  In short, it does infringe, but only if certain circumstances apply.

Sanoma, the editor of Playboy magazine owned the copyright in certain photographs of a model called Britt Dekker. As the owner of the copyright in those photographs, it enjoyed the exclusive rights as to how the photographs were distributed.  It objected to hyperlinks appearing on a gossip/entertainment website called GeenStijl (operated by a company called GS Media), that directed viewers to an Australian website containing photographs of Ms Dekker.

Sanoma objected to the hyperlink appearing on GeenStijl’s website, as it allowed viewers to see the photographs without their consent.  GeenStijl refused to remove the hyperlinks, but the Australian website did remove the photos after an approach from Sanoma.  GeenStijl were still clearly determined to find a way for its viewers to see the photographs of Miss Dekker, and published a new article which contained a new hyperlink to a different website where the photographs could be seen.  That site also removed the photos when approached by Sanoma.  Further links appeared on the GeenStijl site directing viewers to websites where photographs of Ms Dekker could be viewed (without Sanoma’s consent).

The question before the court was whether the use of hyperlinks on one website linking the viewer to another website, which displayed copyright protected material in breach of those copyrights, was itself a breach of copyright.  The ruling came in two parts.

It was held that the posting of a hyperlink on a website which directs you to works protected by copyright, and published without the consent of the author on that website, is not “communication to the public” if the person who posts the link does not seek financial gain, and does not know that the works which are being viewed have been published illegally.

If however the hyperlinks are provided for profit, then the knowledge of the illegality of the publication on the other website must be presumed. In that situation, there will be a presumption that the use of the hyperlinks would be considered as an infringement of the copyrights.

How the use of the links ‘for profit’ can be assessed remains to be seen.  And this may open up further areas of debate as to how income streams are generated by websites, but for now, if there are any photographs of Ms Dekker that you want to see, beware that you may be hyperlinking into danger.

If you would like to discuss this article in further detail, please contact Stephen McVey on 0113 227 0245 or at stephen.mcvey@gordonsllp.com.