Linking to pirated content that is already available to the public can not be seen as copyright infringement under the European Copyright
Directive. This is the advice Advocate General Melchior Wathelet has sent to the EU Court of Justice, in what may turn out to be a landmark case.
One of the key roles of the EU's Court of Justice is to interpret European law to ensure that it's applied in the same manner across all member states. The Court is also called upon by national courts to clarify finer points of EU law to progress local
cases with Europe-wide implications.
In recent years the Court was called upon to rule on several cases related to hyperlinking, in an effort to established whether links to other websites can be seen as copyright infringement.
Previously, it ruled that links to copyrighted works are not infringing if the copyright holder published them in public, and the same is true for embedding copyrighted videos.
But what if a link points to content that is not authorized by the copyright holder? Would this still be allowed? According to EU Advocate General Melchior Wathelet, it is.
In an advisory opinion to the EU Court of Justice, which will issue a final ruling later, the Advocate General reviewed a dispute between the Dutch weblog GeenStijl.nl and Playboy. In October 2011, GeenStijl.nl published a post linking to leaked Playboy
photos, which were hosted on the file-hosting service FileFactory. Playboy publisher Sanoma successfully requested the removal of the photos at the hosting service, but in response GeenStijl continued to link to other public sources where they were still
The Dutch Court asked the EU Court of Justice to rule whether these links can be seen as a communication to the public under Article 3(1) of the Copyright Directive of the Copyright Directive, and whether they facilitate copyright infringement.
In his advice today the Advocate General acknowledges that the hyperlinks facilitate the discovery of the copyrighted works, and make them more easily available. However, this isn't copyright infringement. The EU Court of Justice's writes,
commenting on the advice.
hyperlinks which lead, even directly, to protected works are not 'making them available' to the public when they are already freely accessible on another website, and only serve to facilitate their discovery,
The Advocate General argues that linking is not the same as making the content available, which would apply to the original uploader. This means that GeenStijl's actions can not be characterized as copyright infringement:
The actual act of 'making available' is the action of the person who effected the initial communication. Consequently, hyperlinks which are placed on a website and which link to protected works that are freely accessible on another site cannot be
classified as an 'act of communication' within the meaning of the Directive.
In fact, the intervention of the owner of the site which places the hyperlink, in this case GS Media, is not indispensable to the photos in question being made available to internet users, including those who visit GeenStijl's website.
The advice is a setup for a landmark ruling. However, the Court stresses that the advice only applies to this particular case.
Technically, most torrent sites including The Pirate Bay, mostly link to material that's already available elsewhere. However, in these cases the general purpose of the site may also be taken into account.
That said, the advice is good news for news sites, bloggers and the general public, as incidentally linking to relevant copyrighted material should be allowed in most cases.
The Advocate General's advice is not binding, but the European Court of Justice often uses such advice as the basis of its rulings. The final verdict is expected to be released later this year.
The European Copyright Society, a group of prominent European legal academics, has released an opinion stating that linking to or framing copyright infringing
content does not itself constitute infringement.
The Society argues that a hyperlink is not a transmission to the public as defined in Article 3(1) of the Information Society Directive, and therefore does not constitute infringement.
Clearly, hyperlinking involves some sort of act -- an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic
transmission of the work, or placing the work into an electronic network or system from which it can be accessed.
This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not.
The opinion concerns Case C-466/12 Svensson, currently before the European Court of Justice, which asks whether the news aggregator Retriever is guilty of copyright infringement by virtue of having linked to various news sources.
The ECS also highlights the significance of this question for the health of the Web and for Europe's online economy:
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well -- of course -- with
business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this
A former Tory local council candidate has failed in his libel action against Google over comments posted about him on a blog.
Payam Tamiz started legal proceedings against Google after allegedly defamatory comments were written about him on the London Muslim section of Blogger.com.
Google argued that it had no control over any of the content and had no way of knowing whether the comments posted were true or not.
In a written judgement handed down at the high court on Friday, Mr Justice Eady said Google should not be regarded as a publisher under the established principles of the common law.
Eady said that even if Google was regarded as the publisher of the offending words, it would be exempted from liability in accordance with regulation 19 of the European Union's electronic commerce directive 2002.
Last week the High Court convicted two newspapers, the Daily Mail and the Sun, of contempt of court for the publication on their websites of a photograph of a man toting a gun during the ongoing criminal trial of that man. They are
now likely to face large fines.
It was the first such case of contempt relating to an online publication. By way of background, Alex Bailin QC has posted an excellent comment piece on the Inforrm blog. I have also already discussed the judgment, and the ominous
warning by the court that instant news requires instant and effective protection for the integrity of a criminal trial .
My post generated comments from concerned bloggers and tweeters asking what this meant for contempt and online publishing going forward. This is a hard question to answer as it mostly depends on which cases the Attorney General
chooses to prosecute. But, although the following is not legal advice, reviewing the case-law on contempt provides some indication of may be to come, and common-sense ways in which publishers, including tweeters and bloggers, can avoid being prosecuted.
The Daily Mail does not have to identify the people behind two anonymously posted comments on its website because to do so would breach their rights to privacy, the High Court has said.
Jane Clift was the subject of a news story about being put on a council list of potentially violent people. She demanded information from the Daily Mail that would help her to identify two commenters so that she could sue them for defamation.
But Mrs Justice Sharp said that the posters' rights to privacy were more important than the woman's right to take legal action about comments that were little more than pub talk . She said that Clift's case was not strong enough to merit the
identification, and that she should not have taken the comments as seriously as she did.
Mrs Justice Sharp said in her ruling.
It was fanciful to suggest that a sensible and reasonable reader would understand those comments as being anything more than 'pub talk'.
The postings were of two lines and were effectively posted anonymously by members of the public who did not report to have knowledge of the matters they concerned. It is important to put the postings into context as to their meaning
and what they were commenting on.
The potential disclosure of information to [Clift] engaged the users' rights to respect for their private and family lives under the European Convention on Human Rights.
A company is responsible for making available internet-hosted material in the country where its host server is based, not in the
country where the material is read or used, the High Court has said.
The Court ruled that the law should be applied to material hosted on the internet in the same way that it applies to satellite television, meaning that the jurisdiction covering infringing material is that of the country from where the material
The Scottish and English football leagues and Football Dataco claimed that Sportradar of Switzerland and its German subsidiary infringed their copyrights and database rights when it published live football data on the internet for use by betting
Sportradar said that the English courts did not have jurisdiction to hear a case based on the database rights question because it had not made available any content in the UK.
The Court agreed, saying that the making available takes place where the server is, even if the use of material takes place somewhere else.
The judgment, a preliminary ruling in a case which will continue to a full trial, clarifies the liabilities of online publishers and restricts those liabilities in some key respects the country from which they publish.
Bloggers might be able to escape court reporting restrictions because they have not been informed of the restrictions. An ongoing case about a boy said to have fathered a child at 12 years of age has highlighted the issue.
Reporting on that case has been restricted but foreign news outlets have carried stories about it, with versions of those stories appearing on websites accessible from the UK.
Some bloggers have picked up the stories and may be within their rights to publish while national newspapers cannot. The court order imposing the reporting restrictions says that it only applies to people who know about the restriction.
There is no central database of reporting restrictions, so while newspapers are informed of restrictions, bloggers generally are not, opening a legal loophole for their possible publishing of restricted information.
The order does, in principle, apply to 'bloggers' because it applies to all persons who know that the order has been made, said James McBurney of Pinsent Masons, the law firm behind OUT-LAW.COM. Bloggers, along with any other person or
corporation are therefore prohibited from publishing any of the restricted material, but only if they know that it is in place to start with, which is where the difficulty arises: how are they supposed to know about it?
McBurney said that publishers and bloggers should take down material from a case once they find out that it is the subject of a reporting restriction.