The decision of the CJEU (Court of Justice of the EU) in the GS Media case is a shock. For those who are still enjoying your summer holidays, the CJEU issued today a decision that will not be forgotten easily.

The first reason is that the CJEU does not follow its Advocate General (AG), who in April this year gave his (non-binding but, as with all AG opinions, typically influential) opinion on this case and the approach he thought the final judgement should take (for a comment of his opinion see my previous here). The second reason is that the CJEU significantly narrows down the scope of its previous decisions on linking (Svensson of 13 February 2014, and BestWater of 21 October 2014, for which no AG had expressed a view). The third reason and potentially one of the most problematic is that the GS Media decision seems at odd with the approach taken by this same CJEU in Google v Vuitton, 6 years ago. Google v Vuitton was about trade marks and not copyright, but does the difference really matter? To put it bluntly, this decision could be worrisome for the future of intermediary liability, couldn’t it!?!

In a nutshell, GS Media operated a website (‘the GeenStijl website’), on which had been posted hyperlinks to other websites featuring photographs of Ms Dekker taken for Playboy magazine. The copyright holder of those photos had not given its consent to the making available of these photos on the Web. All that the copyright holder had done was to grant the publisher of Playboy magazine an exclusive licence to publish these photos. However, the editors of the GeenStijl website had received a message with a link to a file hosted on a third party website containing these photos. In passing, the very business of the GreenStijl website is the publication of “news, scandalous revelations and investigative journalism with lighthearted items and wacky nonsense”! On the same day this message was received, the publisher of Playboy magazine “asked GS Media’s parent company to prevent the photos at issue being published on the GeenStijl website”. Nothing happened and the day after an article was published on the GeenStijl website “entitled ‘…! Nude photos of… [Ms] Dekker’, (…), which included part of one of the photos at issue, and which ended with the following words: ‘And now the link with the pics you’ve been waiting for’.” After that followed a series of requests on the part of the publisher of Playboy magazine to takedown articles, links to the photos, and user comments. Notably, while the publisher of Playboy did not get much from GS Media et al., it managed to have the photos taken down by the hosting providers. But (predictably) the GeenStijl website updated its links after each takedown.

From the foregoing it is clear that the GS Media is an “easy” case (without wanting to be provocative!). Even if GS Media could not be found responsible for an act of primary infringement, it was not difficult to rely on other liability theories and hold GS Media responsible in law. And this is just what the Amsterdam Court of Appeal seemed to have done. To use the words of the CJEU the Court of Appeal had found that:

“GS Media had not infringed Mr Hermès’ [the photographer who took the photos] copyright, since the photos at issue had already been made public before they were posted on the Filefactory website. In contrast, it found that, by posting those links, GS Media acted unlawfully toward Sanoma [the editor of Playboy] and Others, as visitors to that website accordingly were encouraged to view the photos at issue which were illegally posted on the Filefactory website. Without those hyperlinks, those photos would not have been easy to find [what does “easy to find” really mean, I wonder…]. In addition, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) held that, by posting a cutout of one of the photos at issue on the GeenStijl website, GS Media had infringed Mr Hermès’ copyright.” [ para. 18].

What does the CJEU hold in this case?

To determine whether an act is a communication to the public have to be taken into account “several complementary criteria, which are not autonomous and are interdependent” says the CJEU at para. 34 [which is not the most elegant formulation!].

Here are the complementary criteria:

1. “the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the broadcast work” [para. 35]
2. “the concept of the ‘public’ refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people.” [para. 36]. Plus “to be categorised as a ‘communication to the public’, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work.” [para. 37]
3. “it is relevant that a ‘communication’, within the meaning of Article 3(1) of Directive 2001/29, is of a profit-making nature” [para. 38]

So both knowledge on the part of the hyperlinker (of the protectable nature of the work and the lack of consent of the copyright holder) and the profit-making nature of the act of linking are crucial considerations. But what does it mean that they are complementary considerations?

Very little indeed! Why?

Because of the following presumption created by the CJEU [and in this sense para. 51 is the most problematic paragraph of the decision]:

“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.”

In brief, if the posting of hyperlinks is carried out for profit, knowledge is presumed on the part of the hyperlinker!

Why is this solution problematic? Because in Google v Vuitton concerning trade marks the CJEU had said other things and in particular:

1. A referencing service provider is not a primary trade mark infringer [although clearly trade marks and copyright are two distinct intellectual property rights]
2. Referencing service providers can benefit from Article 14 of the e-commerce Directive (as long as “the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’” as per para. 113).
3. “It must be pointed out that the mere facts that the referencing service is subject to payment, (…) cannot have the effect of depriving [the referencing service provider] of the exemptions from liability provided for in Directive 2000/31.” [para. 116]. Consequently, it is not possible to presume from the profit-making nature of the activity whether the referencing provider had KNOWLEDGE!

Now, you might be thinking….but wait… Google v Vuitton was not about acts of (primary) infringement! And, yes if you look at the way the French Supreme Court asked its question in Google v Vuitton, it is clear that it was of the view at that time that the liability exemption in Article 14 could only apply in cases where the referencing provider could not be characterised as a trade mark infringer. But, hey… by adopting a very broad definition of exclusive rights it is indeed possible to completely undermine the system of liability exemptions to be found in the e-commerce Directive.

So how do French Courts deal with Internet intermediaries? I’ll take one case and one case only: the famous Dailymotion case of 2014! The behaviour of the hosting provider is assessed on the ground of Article 14 of the e-commerce Directive (or more precisely its transposition into domestic law) interpreted a contrario… which means on the ground of a special regime of liability, which is SUBJECTIVE, and, it is obviously not possible to derive knowledge from the profit-making nature of the activity of the Intermediary provider.

But am I going too quickly? Maybe yes… The hyperlinker in GS Media is not an Internet intermediary, is it? It seems to be more an editor than a facilitator or a conduit for expression [see my recent article on the topic here]. Could we then say that the system of liability exemptions is saved and Internet intermediaries such as referencing service providers, e.g. Google, should not be too worried?

Was the CJEU fully conscious of that distinction? Does the CJEU know what an Internet intermediary is? That is certainly not an easy question as the recent actions of the European Commission [discussed in my previous post] show.

Sophie Stalla-Bourdillon