Hyperlinking to unlawfully published copyright images is still legal, says top European judge

That's because hyperlinking to a document does not constitute a fresh publication, according to Melchior Wathelet, advocate general of the Court of Justice of the EU, in a legal opinion issued Thursday.

But his opinion, on a case brought by the publisher of Playboy magazine, is only advisory, and it still remains for the CJEU to make a final ruling on the matter. The question of whether hyperlinking constitutes publication is important to copyright and libel law. It was last addressed by the CJEU in 2014, when it found that Swedish media aggregation site Retriever did not need a newspaper's permission to link to stories. 

The latest case began when a photo shoot commissioned by Playboy magazine with Dutch TV personality Britt Dekker appeared without Playboy's permission on an Australian website.

A Dutch website, GeenStijl, then published a link to the photos on the Australian site, earning it a letter from Playboy's lawyers asking it to remove the link. GeenStijl refused -- and when the photos were removed from the Australian site, it published a new link to another website hosting the pictures, also without permission. When that site too removed the pictures, GeenStijl allowed users of its forum to publish further links to other sites with the photos.

All that landed GeenStijl in court, accused by Playboy of copyright infringement. The case went all the way to the Supreme Court of the Netherlands, which called on the CJEU, the EU's highest court, to rule on a number of legal questions.

The Dutch court first wanted to know whether the act of hyperlinking to copyright-protected material published without permission of the rights holder constitutes a "communication to the public," the term for publication used by the EU's 2001 Copyright Directive.

It then asked whether it would make a difference if the material in question had not previously been published by the rights holder. The court also asked if the person creating the hyperlink knew that the material had not previously been published by the rights holder or was published without the rights holder's permission.

Wathelet answered all those questions in the negative.

The Dutch court also wanted to know whether hyperlinking can be considered publication if the site would be difficult to find in the absence of the hyperlink.

Again, Wathelet said no: Hyperlinking does not constitute a communication to the public in any of those circumstances.

"I consider that hyperlinks which lead, even directly, to protected works do not 'make available' those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works," Wathelet wrote.

If the CJEU follows the advocate general's opinion, then it will be good news for GeenStijl and its particular style of irreverent blogging -- but also for websites across the EU.

A different ruling from the CJEU could oblige sites to verify that everything they link to is published with the authorization of the copyright holder -- or to not hyperlink at all.

"If users were at risk of proceedings for infringement of copyright ... whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society," Wathelet wrote in his opinion.

The CJEU will now begin considering its judgment on the points of law. It will then be up to the Dutch court to apply the ruling, which courts in other EU member states must also apply when faced with similar questions.