Some of you certainly remember the Google v Vuitton case decided by the CJEU some years ago now, in 2010, which was a case about trade mark infringement. (Sometimes it is useful to go back to the roots!)
To make the story short, the case involved the use of keywords corresponding to trade marks in Google’s AdWords system. This was the 3rd question asked by the French Cour de cassation, as reformulated by the CJEU, that this same court had to answer: “By its third question in Case C‑236/08, its second question in Case C‑237/08 and its third question in Case C‑238/08, the Cour de cassation asks, in essence, whether Article 14 of Directive 2000/31 is to be interpreted as meaning that an internet referencing service constitutes an information society service consisting in the storage of information supplied by the advertiser, with the result that that information is the subject of ‘hosting’ within the meaning of that article and that the referencing service provider therefore cannot be held liable prior to its being informed of the unlawful conduct of that advertiser”. (Para. 106).
In Google v Vuitton, the CJEU noted at para. 115 that: “With regard to the referencing service at issue in the cases in the main proceedings, it is apparent from the files and from the description in paragraph 23 et seq. of the present judgment that, with the help of software which it has developed, Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls. Thus, Google determines the order of display according to, inter alia, the remuneration paid by the advertisers”.
I repeat, in case you have not heard properly: “Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls”. (I should maybe also add a question mark!)
In itself, and this is important, such a consideration was not enough to deprive a referencing service provider, such as Google, from the benefits of the exemption from liability under Article 14 of the e-commerce Directive. The sole consideration identified by the CJEU in this case, which could prevent a referencing service provider from benefiting from Article 14, was “the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords”.
4 years later, in a completely different context (I can’t stress this enough), the CJEU decided in the Google Spain case (where it ruled on three questions concerning the interpretation of the Data Protection Directive with regard to the processing activities of search engine providers and, in particular, the existence and scope of the so-called ‘right to be forgotten’) that:
“Therefore, it must be found that, in exploring the internet automatically, constantly and systematically in search of the information which is published there, the operator of a search engine ‘collects’ such data which it subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on its servers and, as the case may be, ‘discloses’ and ‘makes available’ to its users in the form of lists of search results. As those operations are referred to expressly and unconditionally in Article 2(b) of Directive 95/46, they must be classified as ‘processing’ within the meaning of that provision, regardless of the fact that the operator of the search engine also carries out the same operations in respect of other types of information and does not distinguish between the latter and the personal data” (para. 28).
Then the CJEU almost jumped from para. 28 to para. 33 without really further explanation (except maybe the fact that the very concept of “data controller” has to be interpreted broadly) and stated that:
“It is the search engine operator which determines the purposes and means of that activity and thus of the processing of personal data that it itself carries out within the framework of that activity and which must, consequently, be regarded as the ‘controller’ in respect of that processing pursuant to Article 2(d)”.
Where does this leave us? 2 scenarios seem to emerge.
- When a referencing service provider supplies links, and in particular sponsored links, it is passive (unless it has an active role in the drafting of the message accompanying the link) and should not bear any responsibility – at least until it is aware of (alleged) unlawful activities on its system, at which point it should promptly refuse to list the sponsored links, in other words it should delist the links (to gain the protection of Article 14 of the e-commerce Directive).
- When a referencing service provider supplies links, and in particular natural results, it determines the purposes and means of the processing of the personal data linked to and as such should bear some responsibilities and, at least should when a data subject makes a (sensible) request, delist the links tied to the data subject’s name (for the purposes of Article 12 of the Data Protection Directive).
Although ultimately in both cases a referencing service provider can be asked to delist, and therefore the solutions can live together, the clothing of the solutions is not exactly the same… and, at least potentially, solution number 2 could be much more burdensome than solution number 1 if responsibilities also implies compensating the data subject.
But the story doesn’t end there. Again, in a completely different context, just a few months before the Google Spain judgement, the CJEU had to answer the following question, as again reformulated by the CJEU itself, in Svensson:
“[Must] Article 3(1) of Directive 2001/29 (…) be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible?”
The answer of the CJEU was that linking is “making a communication to a public” (para. 23) but “making available the works concerned by means of a clickable link, (…) does not lead to the works in question being communicated to a new public” (para. 25). As the CJEU seemed to adopt a subjective approach to the notion of “new public” the consequence should be that the authorisation of the copyright owner to communicate the work to the public before the listing of the clickable links does matter.
(To note, as in the later Bestwater case only the legal question posed to the CJEU really matters, Bestwater is not saying much more than Svensson).
What is/could be the upshot of Svensson for a referencing service provider? When a referencing service providers supplies links, and in particular natural results, it would need to be considered as a prima facie direct copyright infringer each time the copyright owner has not authorised the first communication of the work to the public (which took place before the listing of the clickable links by the referencing service provider).
Could Article 14 of the e-commerce Directive be of any help here? The answer should be no, at least if one wants to remain consistent with the initial rationale of Article 14 of the e-commerce Directive, because Article 14 is meant to be about third-party liability (this explains the way the 3rd question of the Cour de cassation had been drafted in Google v Vuitton). In other words, secondary liability (both for trade marks and copyright) has been harmonised at the EU law, but only partially and above all only negatively (i.e. only exemptions from secondary liability), by making sure or attempting to make sure intermediaries can benefit from a series of exemptions in certain cases.
So what? Are liability exemptions really a species in danger of extinction? (See an earlier post here including similar questions).
Wait! Some might be whispering! We have now the opinion of the Advocate General Wathelet in the GS Media case issued on 7 April! This opinion was given in response to questions referred to the CJEU by the Supreme Court of the Netherlands regarding whether hyperlinking to works which are freely accessible on another website, but which have been posted without the copyright owner’s consent, constitutes copyright infringement under Article 3(1) of the Copyright Directive (2001/29/EC).
And what is the AG trying to do in GS Media! He is trying to convince the CJEU that, if ultimately the solution was appropriate in Svensson, the reasoning was not maybe the best of all! He is basically saying that the listing of clickable links did not amount to making a communication to the public (since the intervention of the hyperlinker was not indispensable to the making available of the relevant works to online users, see para. 60), while the CJEU in Svensson just said the opposite. (The AG is less convincing when it suggests that that there is no new public being communicated to).
What if, yes indeed, the listing of clickable links does not amount to making a communication to the public? Referencing service providers could not be considered direct or primary copyright infringers. Would it make sense to use theories of secondary liability and say that, when referencing service providers are aware that the links at stake points to a work of which the communication to the public has not been authorised and they remain inactive, they could be e.g. negligent? The answer could be yes in some Member States, e.g. France, but in others, such as the UK, the answer is not that straightforward (see the UK version of L’Oreal v eBay per J. Arnold) unless the European Commission convinces itself and the rest of us of the importance and relevance of a duty of care!
Could it be then that Article 14 is likely to become purely redundant at least in some Member States? But if Article 14 is to become redundant, what do we do with the notice-and-take procedure so widely used by copyright owners against Google acting as a referencing service provider? Does it become purely voluntary?
Isn’t it time to stop thinking in silos and bring the different bits and pieces together? What will the European Commission do with this “duty of care”? Is this an attempt to harmonise theories of secondary liability? And what about linking? Do we need an exception to cover acts of prima facie direct infringement?