The dispute brought before the Court of Justice in Case C-160/15 concerned Sanoma (editor of the monthly magazine Playboy), and GS Media (the Dutch operator of the internet site GeenStijl). It came to the attention of Sanoma that GeenStijl had published advertisements and hyperlinks linking to an Australian site, which contained photos that had been commissioned by Sanoma but not authorised by them for use. Pursuant to the EU Information Society Directive, every communication to the public that contains copyrighted material, must be authorised by the owner of that copyright. The photos in question were of Dutch personality Britt Dekker and the copyright was exclusively owned by Sanoma through Playboy.

GS Media repeatedly refused to remove the hyperlinks, and when the Australian site deleted the images, they relinked to another unauthorised site where the images were still available. This second site also removed the images upon request from Sanoma but internet users who frequented the GeenStijl forum then posted new links to other unauthorised sites where the images could still be viewed.

Contrary to the claim made by Sanoma that GS Media infringed its copyright through its actions, the Advocate General is of the opinion that the images were already freely available in multiple other locations, and that therefore placing a hyperlink merely directed users to content that was already there. He states that this does not constitute as an infringement of copyright as the actual act of ‘making available’ is the responsibility of the person who effected the initial communication, and not of someone merely linking to it. Following this reasoning, hyperlinks cannot be construed as an ‘act of communication’ and that whether the photos were authorised or not, they were already readily available in the public domain.

The Advocate General considers that internet users are not always able to establish whether an image is copyrighted or whether they have the correct authorisations to post a link and that restrictions on the right to post links would be to the detriment of the functioning and architecture of the internet.

The Advocate General’s opinion is not binding on the Court of Justice, but merely allows the Advocates to propose a legal solution to the court for cases that they are responsible for. The Judges of the Court will now begin their deliberations and judgement will be given at a later date.

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