September 12, 2016

The CJEU has given its decision in the eagerly-awaited GS Media v Sanoma case. By way of background, Sanoma is the publisher of Playboy magazine, and it commissioned photos of Britt Dekker to appear in the magazine. GS Media is the operator of the website GeenStijl, which features, by its own description “news, scandalous revelations and investigative journalism with light-hearted items and wacky nonsense“. GS Media obtained a link to a site which featured unauthorised copies of the Dekker photos, and prior to Playboy’s publication it made part of one of those copies available on its website together with a link to the remainder of the shots. Sanoma claimed copyright infringement on behalf of the photographer, and at first instance the Amsterdam District Court upheld the claim. On appeal, the Court of Appeal overturned the decision, ruling that there has been prior publication of the photos on the original website and therefore no copyright infringement by GS Media, but GS Media had acted tortiously against Sanoma by encouraging traffic to material that was otherwise difficult to find.

The case went to the Dutch Supreme Court, which found the reasoning in Svensson and BestWater not sufficiently clear to enable it to decide whether linking to unauthorised material that is freely available on the internet amounts to copyright infringement. Having considered its own case law, the CJEU observed that in Svensson and BestWater it had been dealing only with links to material made available with the consent of the rights holder (an odd claim, since in BestWater the claimant maintained that the presence of its video on YouTube was unauthorised).

In its decision The Court held there are two types of linker. The person not linking for profit cannot be said the be communicating the linked material to the public unless (a) they know or ought to have known that the material was online without consent or (b) the link intentionally circumvents access restrictions to the material. A person linking for profit, on the other hand, can be presumed to have carried out the necessary checks on the linked material, and therefore is communicating the material to the public if its initial presence online is without the owner’s consent.

For a link to the Report, click here. (GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises international Inc. and Britt Dekker, case C-160/15).