WIREDGOV

The motivation of the person who placed the hyperlink and the fact that this person knew or should have known that the initial communication of the photos on other sites was not authorised are not relevant. 

Pursuant to an EU Directive, each act of communication of a work to the public has to be authorised by the copyright holder.

Sanoma, the editor of the monthly magazine Playboy, commissioned a photoshoot of Britt Dekker, who regularly appears on television programmes in the Netherlands. GS Media, operator of the internet site GeenStijl, published advertisements and a hyperlink directing viewers to an Australian website where the photos in question were made available without the consent of Sanoma. Despite demands from Sanoma, GS Media refused to remove the hyperlink in question. When the Australian website removed the photos upon Sanoma’s request, GeenStijl published a new advertisement which also contained a hyperlink to another website on which the photos in question could be seen. That site also complied with Sanoma’s request to remove the photos. Finally, internet users who frequent the GeenStijl forum posted new links to other websites where the photos could be viewed.

According to Sanoma, GS Media infringed copyright. Hearing the appeal in cassation, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeks a preliminary ruling by the Court of Justice on this subject. The Hoge Raad notes in particular that, whilst the photos were possible to find before GS Media placed the hyperlink, this was not necessarily easy, with the result that the placement of the hyperlink made it easier to locate them.

In today’s Opinion, Advocate General Melchior Wathelet stresses, first of all, that the request for a preliminary ruling only concerns the hyperlinks on GeenStijl’s website. Copyright infringements arising from the photos being made available on other internet sites are not at issue.

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