Recently in Svensson (C-466/12), the CJEU ruled that the owner of a website may use hyperlinks to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is "freely accessible", i.e. can be accessed by anyone using the Internet. Hyperlinking to protected works would only constitute an act of "communication to the public" under Article 3(1) of the InfoSoc Directive if the work was accessed by a "new public". In BestWater (C-348/13) the CJEU held that embedding content from another website also would not constitute a "communication to the public" if the original uploader did not restrict access to the content and communicated to the whole Internet community.
In October 2011, GeenStijl.nl published an article about leaked nude photos of Dutch model/TV presenter, Britt Dekker, taken for the December edition of Playboy. The article contained a hyperlink to photos hosted by Australian file sharing website FileFactory.com. At the request of Sanoma (the Playboy publisher), Filefactory.com removed the file but GeenStijl.nl continued to link to other websites where the unauthorised photos were accessible. Sanoma successfully sued GeenStijl.nl in the Dutch court for copyright infringement but the decision was appealed and the Dutch Supreme Court has now asked the CJEU for further guidance on linking to unauthorised content.
The Dutch Court has asked whether there is a communication to the public within the meaning of Art 3(1) of the InfoSoc Directive when someone hyperlinks to a third party website which is freely accessible but which has placed material online without the consent of the copyright owner. The Court also asks whether it is important that: (i) the party hyperlinking to the content is aware or should be aware that the copyright holder hasn't authorised the placement of the work; and/ or (ii) the hyperlink facilitates the accessibility of the material where the original posting is difficult for the average internet user to find.
This reference is not particularly surprising because the CJEU in Bestwater did not deal with the question of linking to unauthorised content, even though the video in issue may have been uploaded onto YouTube unlawfully. The CJEU was unable to provide further guidance in C More Entertainment (C-279/13) because the questions were ultimately restricted. Further clarification on the legitimacy of using and distributing third party content on the Internet should therefore be welcomed. Content owners will be hoping that the CJEU will allow them to prevent further distribution of unauthorised copies of their works, bearing in mind the liberal position taken by the Court in Svensson and Bestwater.