The cliché goes that “hard cases make for bad law”. The Court of Justice of the European Union (CJEU) judgment in GS Media case (C‑160/15) is one of the real-life examples of this.
It is not easy to sympathise with the losing party, GS Media, who exploits a provocative blog with the name “GeenStijl” (which roughly translates as “no class”). The winning parties include Playboy, a magazine that once was a cultural icon and is struggling for its relevance in today’s world. GeenStijl had published a hyperlink to a set of photographs of a Playboy Magazine issue that yet had to hit the newsstands, featuring Britt Dekker, a Dutch reality TV star. The photographs were not hosted on any site operated by GS Media, but on an Australian website. GeenStijl repeatedly drew attention to these photographs, despite, or possibly even because of, objections by Sanoma Media, Playboy’s then Dutch licensee and publisher in The Netherlands). GeenStijl however claimed that the photographs had been leaked from within Sanoma Media in order to draw attention to Playboy Magazine, which had been suffering lagging sales.
Playboy et al litigated against GS Media. That resulted in prejudicial questions to the CJEU on whether a hyperlink to an infringing copy of a work on a generally accessible website constitutes a “communication to the public” as meant in art 3(1) of Directive 2001/29 and a set of related questions.
The CJEU, building on the already problematic Svensson case (C‑466/12, EU:C:2014:76), now has answered that question with a tentative “yes”, introducing a new criterion, namely that of financial gain. The CJEU explicitly acknowledges the difficulties of establishing the non-infringing nature of content on websites operated by others, as well as the fact that hyperlinked content can change after the fact without knowledge of the hyperlinking party. However, it still thinks that a for-profit operator of a website hyperlinking to others should have an obligation of due diligence to do so.
It is easy to see why the CJEU had so little sympathy for argument that it is hard to ascertain the legitimacy of a hyperlink if the publisher has repeatedly, against the explicit wishes of the rights-holder, hyperlinked to infringing content. However, this lack of sympathy should not lead to a general obligation on for-profit website operators to achieve the generally impossible, as the CJEU has ruled. It is unlikely that the fight about hyperlinking ends with this case. As some have suggested, it is more likely that floodgates of litigation against more sympathetic parties than GS Media have opened. So, the option to finesse this rather clumsy ruling will be available.
Case C‑160/15, GS Media v Playboy
(Contribution by Walter van Holst, EDRi member Vrijschrift, the Netherlands)