Judgement of the Court of Justice of 8 September 2016.

Case C160/15, requested for a preliminary ruling under Article 267 TFEU from the Supreme Court of the Netherlands, concerning 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.

The request was 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.

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.

The Court of Justice has already taken a stand In earlier resolutions, and 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.

However, GS Media, the German, Portuguese and Slovak Governments and the European Commission claim 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.

The Court of Justice concludes that, having regard to the foregoing considerations, 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.