Hyperlinking in Hamburg and Prague: How national courts apply GS Media

by Hogan Lovells
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On 8 September 2016, the European Court of Justice (CJEU) handed down judgment C-160/15 on the means of hyperlinking which caught quite some attention. It has become known as the GS Media decision (see our blog post). In essence, this CJEU judgment imposed new verification duties on commercial website owners who embed hyperlinks to third-party content in their web sites. A Swedish court was first to apply the new criteria (Attunda Tingsrätt, case ref.: FT 11052-15) and now, judgments in Germany and the Czech Republic which deal with the new set of considerations developed in Luxembourg have been handed down.

District Court of Hamburg

With its court order of 18 November 2016, the Regional Court of Hamburg decided upon a case where a link was embedded leading to a photo on a source website where the photo had been made available without meeting the license terms set out by the right holder. Specifically, the linked image featured an edited version of the original photo. The changes were not permissible under the applicable creative commons license.

The German court, in applying GS Media criteria, affirms that hyperlinking in this manner constitutes communication to the public within the meaning of Art. 3 (1) of the InfoSoc Directive 2001/29/EC and therefore classifies this hyperlinking as a copyright-relevant act. This is mainly because the owner of the website sold tutorial material through his website.

Of particular note in this case is that the website was seen to pursue a financial profit. The German court takes the view that the CJEU had not explicitly defined that criterion in GS Media but that it must be understood in a broad sense. The court does not see the act of setting a hyperlink as qualifying pursuit of financial gain. Rather, the overall context of the website is to be looked at. In this commercial context, the strict rules of GS Media apply and the knowledge of the illegal source must be assumed.

In conclusion, the Hamburg court affirms the need to adequately verify whether the linked content has been made available legally. Pursuant to the ruling by the CJEU, the person who placed the hyperlink bears the burden of proof if the website involves any kind of pursuit of financial gain.

District Court of Prague

Unlike the German court, the district court of Prague denied a copyright infringement in its decision dated 16 January 2017. However, the different outcome is due to the specific circumstances of the case at issue. The legal dispute arose between the Anti-Piracy Union and the Czech division of the Pirate Party (Czech Pirates) in 2011. As part of a campaign “Linking is not a Crime“, the Czech Pirates launched a website linking to movie and TV show content. It was their intention to be challenged for having linked to content illegally. Eventually, they were indeed approached by the said Anti-Piracy Union.

In its decision, the district court of Prague clarifies that the hyperlink at issue led to works made available without adequate authorization of the right holder. The judges then turn to the question of whether Czech Pirates knew or ought to have known about the illegal nature of the works. Thus, the judges had to answer the question of whether the website at issue involved any kind of financial pursuit. In the end, no financial pursuit was found as the site was launched out of protest and was not financed by placements of adverts. Equally, there was no other link to commercial activity. Therefore, in applying the GS Media criteria the Czech court denied any liability of the website operator.

Comment

Not surprisingly, both national courts apply the GS Media criteria to the facts before them. The German as well as the Czech judge does this with a fairly broad understanding of what qualifies a website as “commercial”. After all, it was not likely that courts would focus on the link alone when assessing the commercial character and purpose of the reference to third-party content. Assessing the website as a whole does after all make sense in this context. However, the inevitable result is that the vast majority of websites will fall into this category. It is not only companies’ websites that are affected, individuals need to consider very carefully what to place on their websites and where to stop in order to avoid the risk of being deemed to pursue financial gain.

The pursuit of financial gain is not the only challenging aspect of the GS Media jurisdiction. The specific requirements of proof that the legal nature of the linked content has been adequately checked are also far from settled. In the context of reporting on the decision by the German court, the online magazine heise.de asked the district court of Hamburg whether all materials on the court´s own website are made available with the right holders’ consent. Remarkably, the court confirmed in general terms but pointed out that its answer could not be understood as legally binding. This answer somewhat illustrates the practical difficulties in applying GS Media criteria.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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