Illegal hyperlinks: the final decision

Is posting a hyperlink to a work which is protected by copyright allowed? The European Court of Justice (ECJ) has now said yes – and no.

Since 2012 Sanoma and shockblog GeenStijl.nl have faced each other in court. GeenStijl had posted links on its website to unpublished photos from Playboy, a Sanoma publication. Sanoma claimed that GeenStijl violated its copyright. With the ECJ's ruling, this long-running case is now approaching a final decision.

Who posts the link?
Posting links to material which is protected by copyright is allowed even if the copyright owner has not given permission. However, if the organisation that posts the link is motivated by profit, like GeenStijl, posting links is not allowed because it involves a public announcement, which constitutes a copyright violation. Thus, the ECJ ruled that for-profit parties must research whether the work to which the link leads has been made public legally. When a website links to copyright-protected material which has not been made public by the copyright owner, the link constitutes a new public announcement, which is not allowed without permission from the copyright owner. GeenStijl posted a link leading to a website on which copyright-protected photo material had been published without permission from the copyright owner. As GeenStijl is a for-profit company and was aware that the photos had been published without permission, it violated that copyright.

The ECJ also ruled that parties not motivated by profit cannot reasonably be expected to carry out the same research into whether a copyright violation might occur. If one party is not motivated by profit and is unaware that the publication of the works without permission has taken place, linking is permitted.

Linking is and is not permitted
So, following the ECJ's judgment, can links to illegal content be posted?

• Yes – if the website has no profit motive and the illegal nature of the publication is not known.
• No – if:
  • the website is not motivated by profit, but the illegal nature is known; or
  • if the website is motivated by profit but it can be proven that there were sufficient indications that the works had been published legally.