In GS Media v Sanoma Media Netherlands and Others (C-160/15), the CJEU held that the posting of a hyperlink on a website, giving access to copyright-protected work on another website, will not constitute a "communication to the public" under Article 3(1) of the Copyright Directive 2001/29/EC, if the person posting the link did not do so to seek financial gain, and did not know that the hyperlink was published illegally without the consent of the copyright holder. In contrast, if a hyperlink is provided for profit, knowledge of the illegality of the publication on the other website must be presumed.
The CJEU distinguished the present case from its earlier decisions in Svensson (C-466/12), and Bestwater International (C-348/13). In those cases the CJEU held that the concept of "communication to the public" includes two cumulative criteria, namely, an "act of communication" of a work and the communication of that work to a "public". The CJEU concluded in those cases that although the publication of hyperlinks to a freely available work was an "act of communication", there was no publication to the "public". The rationale for this conclusion was that the copyright holder had already taken the public into account when they authorised the initial publication of their work, therefore the provision of hyperlinks did not communicate the works to a "new public". Those cases did not address the issue of whether there would be a "new public" where the initial communication was without the consent of the copyright holder.
Under the Copyright Directive, any act of communication to the public of their work must be authorised by the copyright holder. The CJEU accepted that it may be difficult for an individual posting a hyperlink to a work freely available on another website, who does not pursue a profit in doing so, to ascertain whether the works involved are protected and whether the copyright holders of those works have consented to their publication on the internet. In contrast, the CJEU found that when hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore the CJEU held that it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet. In such circumstances, and insofar as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a "communication to the public".
As a result of this decision, persons posting hyperlinks for profit will need to proactively verify whether the content they are linking to is illegally published on the internet. This is particularly important in light of the burden of proof required in order to rebut the presumption of knowledge. In addition, it would be prudent for all persons posting hyperlinks to implement a ‘Notice and Takedown’ system to efficiently handle notifications to remove hyperlinks to illegally published content.