In a case that could have chilling effects on the open Internet, a European court has ruled that linking to copyright infringing material is itself a copyright infringement.

The case was brought by Sanoma Oyj, the company that publishes the Dutch edition of Playboy Magazine, against GS Media, the publishers of celebrity gossip and news site GeenStikl, after the latter published links to leaked photographs of a Playboy shoot by Dutch celebrity Britt Dekker. Sanoma argued that GS Media knowingly linked to copyright infringing content and therefore was just as liable as those who published the photos to begin with.

As the Court of Justice of the European Union explained in a press release (pdf):

In 2011, GS Media published an article and a hyperlink directing viewers to an Australian website where photos of Ms Dekker were made available. Those photos were published on the Australian website without the consent of Sanoma, the editor of the monthly magazine Playboy, which holds the copyright to the photos at issue. Despite Sanoma’s demands, GS Media refused to remove the hyperlink at issue. When the Australian website removed the photos at Sanoma’s request, GeenStijl published a new article that also contained a hyperlink to another website on which the photos in question could be seen. That site complied too with Sanoma’s request that it remove the photos. Internet users visiting the GeenStijl forum then posted new links to other websites where the photos could be viewed.

Chilling effect

While some outlets have published that the case rests on the fact that GS Media knowingly linking to copyrighted material while running a site that makes money, the potential chilling effect is best explained by the Electronic Frontier Foundation. The EFF noted that “even a non-profit website or individual who links to infringing content can be liable for infringing copyright if they knew that the material was infringing, for example after receiving notice of this from the copyright holder.

“This terrible ruling is hard to fathom given that the court accepted ‘that hyperlinks contribute to [the Internet’s] sound operation as well as to the exchange of opinions and information in that network”, and that “it may be difficult, in particular for individuals who wish to post such links, to ascertain whether [a] website to which those links are expected to lead, provides access to works [that] the copyright holders … have consented to … posting on the internet,'” the EFF added. “Nevertheless, that’s exactly what the judgment effectively requires website operators to do, if they are to avoid the risk of being found to have knowingly linked to infringing content.”

The folks behind GeenStijl didn’t hold back, saying that “An eye on profit, that’s something dirty, according to the European clowns … The consequence is that from now on, you always run the risk of being sued, just for placing a hyperlink.”

While the ruling primarily affects sites hosted and operating in Europe, a site from outside of European Union could potentially be cited for infringement if they were linking to material where the copyright holder was based in the EU.

Image credit: Michael Sander/Wikimedia Commons/ CC 3.0