By Bill Donahue
Law360, New York (September 8, 2016, 12:20 PM ET) -- Playboy won a ruling from the European Union’s top appeals court Thursday blocking a Dutch website from linking to images posted without the magazine’s permission, a decision that could have a major impact on websites and internet users throughout the bloc.
Weighing in on the long-contentious question of whether linking to copyright-infringing material is itself illegal, the Court of Justice of the European Union ruled that for-profit websites that link to unauthorized material will themselves be violating European copyright law.
The ruling is a win for Playboy’s Dutch publisher, Sanoma Media Netherlands BV, which had sued to block the operators of popular Dutch blog GeenStijl from linking to copies of the magazine’s images posted illegally by a third party, as well as for other copyright owners seeking an easier way to shut down the spread of pirated material.
“It is undisputed that [GeenStijl] provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorized the publication of those photos on the internet,” the court wrote in a summary of its ruling.
The ruling that linking itself amounts to infringement could have far-reaching effects on the way the internet functions in the European Union, experts say.
“This is a very surprising decision,” said Ron Moscona, a partner at Dorsey & Whitney's London office. “The decision will have serious ramifications particularly to media outlets, as well as and many other for-profit website operators and internet search engines that provide links to other websites as part of their business.”
Sanoma sued GeenStijl in 2011 for posting links to an Australian website that had published unauthorized copies of photos of model Britt Dekker, which were set to be published in the December 2011 issue of Playboy. The case went through a Dutch lower court and the country’s Supreme Court before being referred to the CJEU last year.
Under EU law, the “communication to the public” of copyrighted material without permission is illegal, but whether or not the mere linking to material that had already been publicly posted by third-parties amounts to such a “communication” has been a contentious, unresolved issue.
In Thursday’s ruling, the court crafted a two-track answer to that question, with the stated aim of trying to “maintain a fair balance” between the rights of copyright owners and the “freedom of expression and of information.”
Linking to infringing material by an ordinary internet user, who wasn't seeking a profit and didn't know that the material was infringing, the court wrote, does not meet the threshold for an illegal “communication.”
But linking to unauthorized works by a for-profit company, the court said, must be presumed to be knowing; and if the company can’t rebut that presumption, then the link itself is a violation of the law.
“When hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published,” the court wrote. “Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet.”
“In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public,’” the court wrote.
According to experts, the court’s split ruling was something of a hedge — an attempt to address the concerns of both copyright owners, who say they need help battling a flood of online infringement, as well as consumer advocates and free speech critics, who say linking is integral to the free flow of information on the internet.
Whether that attempt at judicial pragmatism will succeed is an open question.
“It remains highly controversial whether linking should be ever regarded as a communication to the public,” said Graham Smith, a partner at the London office of Bird & Bird.
“Many will think that the lawfulness of linking is better addressed outside the framework of primary copyright infringement, for instance as a matter of unfair competition or secondary liability, rather than seeking through caselaw to mold the exclusive right of communication to the public to meet a particular case,” Smith said.
One thing is for sure, though: Thursday’s ruling will require far more caution from most websites, which will now be presumed to have known what they were doing if they post links to infringing third-party sites.
And, according to some experts, that could even have a trickle-down effect on the normal web users that the court was trying to avoid.
“If providing hyperlinks risks infringing a third-party copyright on the grounds of ‘deemed knowledge,’ many website operators would prefer to sharply cut down on the use of hyperlinks on their sites in order to limit the risk of infringement,” Dorsey’s Moscona said. “It is difficult to imagine a worse attack on the free flow of information through the internet.”
--Editing by Rebecca Flanagan.