European Court Rules on Copyright Infringement of Sites Linked to Illegal Content

In a led-to-believe disrupting ruling from Europe, the Court of Justice of the European Union (CJEU) has made a decision that might have a profound effect on a wider range of internet users than we can imagine. Published on September 8th, the ruling states that publishers and content providers who link their content to third-party sites containing copyright-infringing material can now be held accountable for copyright infringement themselves.

This raises the pressing question, how can we, as users and content providers, discern between the legal and the illegal? The ambiguity of the internet sometimes makes it very challenging.

This contentious ruling stems from a 2011 case, GS Media v Sanoma Media Netherlands BV, where GS Media was accused of publishing an article that contained a hyperlink leading to an Australian website. This website hosted unauthorized photos of Dutch celebrity Britt Dekker, which were published without consent from Sanoma Media Netherlands BV. According to the court, GS Media, by facilitating access to a potentially violating website, is also deemed complicit, establishing a contentious precedent.

The court expanded on its ruling, stating that according to Sanoma’s argument, GS Media infringed copyright by enabling communication of the work without authorizing it from the copyright holder. As per EU legislation, every act of communication involving a copyrighted work should be approved by the copyright holder.

However, this is a slippery slope when considering that the internet is filled to the brim with works published without the copyright holder’s consent. How the operator of a website verifies the rightholder’s permission is not always clear-cut.

According to the ruling, the goal is to maintain a balanced relationship between copyright holders’ interests and the interests of protected object users, especially respecting their freedom of expression and access to information. The judge ruled that if it is established that a person knew, or should have known that the posted hyperlink grants access to illegally published work, then providing such link constitutes an act of communication to the public.

This decision particularly calls out profit-making parties that potentially benefit from such linking through website traffic or sales. The use of unauthorized celebrity photos could be one such instance, given the high societal value and potential profits. However, the implications are wider than just celebrity photos. The court effectively demands that publishers seek authorization before making such links available, imposing additional due diligence.

The ruling could impact legal referencing, potentially suppressing the free flow of information on the internet. It places an extra burden on mostly legal publishers to perform thorough checks to ascertain that their links are not infringing copyrights. This poses a timing issue with respect to information dissemination, which can be critical in media reporting.

Europe has a history of anti-“big tech” rulings, and this latest judgment escalates those suspicions. Consider the effect on major search engine operators like Google, Bing, and Baidu. These entities rely heavily on data indexing, which in turn means an extensive use of links. This ruling could leave the door wide open for countless lawsuits against search engines. It raises the question of how these search platforms can discern the legality of content based on their current algorithms.

In the worst-case scenario, search engines like Google may not provide full search results to European users, meaning less information for those consumers. The ripple effect of this could be monumental.

Europe pioneered the “right to be forgotten” policy back in 2014, with Google abiding by the ruling that allows European users to demand the removal of their history from the internet. Moreover, there are still pending antitrust claims against Google in Europe. In a landmark ruling last month, a European court ordered Apple to pay back $14 billion in “illegal state aid” taxes, a decision which is now being appealed by Ireland and Apple.

Other American tech companies potentially facing similar rulings include Microsoft, Facebook, and Amazon.

As we navigate this rapidly evolving digital landscape, we can only hope that the links used in this article are free of any copyright infringements. We continue to embrace the challenge as both users and facilitators of this complex world of connectivity.