The issue of whether hyperlinking constitutes an act of copyright infringement, and under what circumstances, has come under scrutiny in recent years as a result of the dispute between GS Media BV (“GS Media”) and Sanoma Media Netherlands BV (“Sanoma”).

Sanoma, the publisher of Playboy Magazine, had commissioned photographs to be taken of the Dutch celebrity Britt Dekker (“Ms Dekker”) and the dispute arose when GeenStijl.nl, a website owned by GS Media, posted hyperlinks to third party websites that contained leaked photographs of Ms Dekker before the photographs had been made available to the public by Playboy.

An action was brought by Sanoma against GS Media claiming that GS Media had infringed the photographer’s copyright by posting hyperlinks to the photographs on the GeenStijl website.  Their claim was successful before the District Court but was later set aside by the Court of Appeal who held that the act of posting hyperlinks did not constitute an act of infringement because the photographs were already publically available on the internet. This decision was appealed and the Dutch Supreme Court then sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the issue of linking to protected content.

On 7 April 2016 the Advocate General (AG) provided his opinion on the subject.

The AG noted that hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public if those works are already freely accessible on another website and that the actual act of ‘making available’ is the action of the person who effected the initial communication.

Consequently, the AG is of the opinion that hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be classified as an ‘act of communication’ within the meaning of Article 3(1) of the InfoSoc Directive. The AG also opined that it is not relevant whether the party providing the hyperlink is aware that the linked content is protected.

With a ruling due to be handed down on Thursday 8 September 2016, the issue of whether hyperlinking constitutes an act of copyright infringement and the ramifications on owners of copyright protected works will become clearer. However, if the AG’s opinion is followed by the CJEU, it seems that it will become increasingly difficult for owners of copyright-protected works to protect their works online.

Further detail on the AG’s opinion is provided in the CJEU Press Release No. 37/16.

We will publish our thoughts following the ruling at the end of this week and keep you updated on how it may affect your business.