ECJ rules of Hyperlinking
Written by Thomas Mould on 12 September 2016« Return to Reading Room
Online publishers who knowingly link to illegally uploaded content are liable for copyright infringement, according to the European Court of Justice.
The case began in 2011 when Geen Stijl, a Dutch blog and one of the most popular websites in the Netherlands, linked to illegally uploaded naked photos of a Dutch celebrity in Playboy.
The pictures were hosted on file sharing website Filefactory, to which the blog linked. Playboy publisher Sanoma demanded that Geen Stijl remove the link to the photos, but the Dutch website refused.
The ruling by the ECJ is the culmination of 5 years of litigation but now further clarifies this contested area of law.
Until now, Europe’s top court has tolerated the widespread practice of providing hyperlinks to unauthorised online content, concluding that this did not generally amount to a breach of copyright. Instead, the website that hosted the underlying content was liable.
On Thursday the ECJ decided that linking to such material did infringe copyright unless it was done “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”.
The ruling means that professional publishers must now take steps to ensure that any links to copyright content have been lawfully uploaded. Profit-making websites can be expected to make “necessary checks to ensure that the work concerned is not illegally published”, according to the judgment.
Search engines such as Google already remove search results that link to websites that host pirated material once informed by rights holders. After Thursday’s ruling, they could be forced to go further by taking down search results featuring publishers that merely link to other websites hosting unlicensed content.
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