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

by Hogan Lovells

Hogan Lovells

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.


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.

© Hogan Lovells | Attorney Advertising

Written by:

Hogan Lovells

Hogan Lovells on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.