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Websites often contain hyperlinks giving access to content elsewhere on the Internet. Can you post such a hyperlink without any risk? Following a recent decision of the European Court of Justice (ECJ), one should tread carefully as hyperlinking may well infringe copyrights.

For its final issue of 2011, Playboy had commissioned nude photographs of Dutch celebrity Britt Dekker. Before publication, these were somehow leaked and appeared on an Australian website. The Dutch website GeenStijl (GS Media) then published an article containing a hyperlink to the leaked photos. Through the hyperlink, the visitor was redirected to the photos on the Australian website. Sanoma, Playboy’s publisher, immediately objected but GS Media ignored Sanoma’s request to remove the link and instead actively promoted it.

Sanoma took GS Media to court, and the case went all the way up to the ECJ. The ECJ held that hyperlinking to copyright protected works (such as the Playboy photos), which are thus freely accessible on the Internet without the owner’s consent, infringes the owner’s copyrights, provided the party posting the hyperlink knew or should have known that the content as available on the Internet was illegal. If the party posting the hyperlink does so for financial gain, knowledge of the illegal nature is assumed. This decision clearly strengthens the position of copyright owners and places a heavier burden of responsibility on those wishing to share content available online. Copyright owners are recommended to inform others of the infringing nature of the content once the owner is aware of the content being posted. People wishing to link to content should investigate beforehand if the linked content is lawfully available on the internet. The Court´s decision fails to clarify, however, exactly what should be considered as financial gain. Does this mean the actual hyperlink should generate money, or is this criterion already met if the website containing the link contains (unrelated) ads/banners to generate income? Only time will tell….