GS Media finds its first application in Germany

After the CJEU,
it's now the turn of national courts

As The 1709 Blog [with refreshed look-and-feel!] reported a few days ago, after a Swedish judge it has been the turn of a German court to apply the principles that the Court of Justice of the European Union (CJEU) set in its landmark GS Media [Kat-coverage here].

Katfriend Sascha Abrar (Löffel Abrar IP lawyers) explains what happened.

Here's what Sascha writes:

"Linking to unauthorised content: German court applies GS Media for the first time – far too extensive interpretation of “posted for profit” 

Since December 8, 2016, the online community in Germany has been in a state of 'shock', as Spiegel Online, one of the most widely-read German-language news websites, reported by citing a tweet of the popular German news website heise online: “OK, Internet. That´s it, it was nice with you”. 

This is certainly exaggerated, but the background to this statement causes trouble indeed.

The Regional Court of Hamburg (Landgericht Hamburg) decided by means of an interim injunction application a matter concerning the linking to an unlicensed copyright work (310 O 402/16). This decision is a result of the CJEU judgment in GS Media and the court in Hamburg has caused a major public outrage, because the decision appears to impose extensive legal obligations to be carried by the person or company who posts the link, if the website where the link is published has any kind of commercial nature. 

The facts were as follows: The respondent published a hyperlink directing viewers to a website where a photo had been made available. The subject photo was transformed and published on the website without the consent of the photographer (applicant), who holds the copyright to the photo at issue. The photographer filed and interim injunction and asked the respondent to cease and desist from publishing the link. The court granted the interim injunction. 

Profit-making intention:
what is it all about?

The crucial issue for the court was how to apply para 51 (cited below) of the CJEU judgment in GS Media, in particular how to assess if the posting of the link was with the pursuit of financial gain: 

“Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” 

The German court held that “profit” does not necessarily mean to gain profit by setting that particular link, as, for example, in cases of cost-per-click calculations. Quite the contrary, the court decided that is was sufficient that the website as such was run with the intention to realise profits, irrespective of the commercial impact of the particular link. The court assumed the respondent’s intention to make profit, only because he was offering educational material via his website [note from Eleonora: this does not appear to be different from the kind of assumption made by the Attunda District Court in Sweden ...]. 

It is obvious that such an interpretation means that basically every kind of website run by a person or company in business can trigger the obligation to rebut the presumption that the link was posted in full knowledge of the unlicensed nature of the publication linked to. It is most questionable if such outcome was really intended by the CJEU.

Following such an approach even most respectable and honest commercial companies that acted in good faith could be liable for copyright infringement if they do not check in detail the accuracy of the website to which the link refers to, in fact not only in advance but also during the whole period of linking (e g. including cases of subsequent amendments!). This seems absurd and would significantly diminish linking, even though in GS Media (para 45) the CJEU acknowledged that

“the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information.”

Crystal ball-gazing:
another criterion
added by GS Media?

The good news for the linking community is that this was only a decision rendered in the context of an interim injunction application. Another court might have taken a different view. In addition, the particular facts of the case might have influenced the decision in favour of the rightholder (as this may have been the case in GS Media), as the respondent emphasised that he was not willing at all to check to ensure in advance that the photo concerned had not been illegally published on the website to which the subject hyperlink led. He asserted that he was aware of the GS Media decision when he set the link, but that he considered himself not to be bound to any such obligations imposed by the CJEU, as the decision, in his opinion, would not comply with the German Constitution. 

Unfortunately, this case will not be finally decided by the German Federal High Court (Bundesgerichtshof) on the merits, as the respondent accepted the order as binding. 

Nevertheless, there will be certainly more cases to come, where the Federal High Court and preferably the CJEU will have the opportunity to sharpen (and hopefully narrow down) the interpretation when a link is posted “for profit. 

It might take a long time until we will finally know what the CJEU meant by “carried out for profit”, unless the EU legislature will provide precise legal provisions on linking before that. One solution could be, as a basic rule, to implement for linking a notice-and-take-down procedure by law, not only for websites which lack any commercial background but also for websites which are run for profit. If the person who set the link had full knowledge of the protected nature of that work and the lack of consent to publication on the internet by the rightholder (as this might have been the case in GS Media), its liability should be triggered without need of a separate notification. The further details should be cleared by the EU legislature instead of leaving this to the CJEU’s interpretation, being aware that some issues remain to be decided on a case-to-case basis (e. g. what does “full knowledge” mean in particular cases)."

Thanks so much Sascha for this thought-provoking commentary!