European Court of Justice, GS Media BV v Sanoma Media Netherlands BV and Others, Case C-160/15

(1) In GS Media, the ECJ had to decide whether a link to materials that the copyright holder didn’t authorize were infringing communication to the public. In this case, the defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server by an unknown uploader. Sonoma noticed GS Media of the infringing nature of the linked material—asking for removal of the link multiple times.

(2) In finding GS Media liable for copyright infringement, the Court noted however that the alleged infringer can only be held responsible for the infringing act if he had sufficient knowledge of the unauthorized publication of the linked work.

(3) Also, the court established a rebuttable presumption of knowledge in cases of links made for profit purposes by noting that “furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29."

 

See also the Wikipedia entry about this case.