It killed Safe Harbor. Will Europe's highest court now kill off hyperlinks?

Intriguing legal case over leaked Playboy pics may impact web

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The European Court of Justice heard arguments in a case Wednesday that may have internet-wide consequences, since it considers the legal nature of hyperlinks.

The continent's highest court, which recently annulled the Safe Harbor agreement that covered transatlantic data flows, is now considering whether people should have to consider whether material is infringing copyright before posting a hyperlink to it.

It will also decide whether there are effectively two types of hyperlink: one that points to easily findable public resources (like news articles) and one that points to specific files or locations that would not be easily discoverable, e.g., zip files held on obscure servers.

Fairly obviously, the implications are huge.

But first to the case. It started back in 2011 and revolves around leaked images of a young Dutch TV presenter, Britt Dekker, that were due to appear in the Dutch version of Playboy. Before publication, tabloid website Geenstijl (which means "no class") linked to a zip file of the images held on an Australian server.

As a result, Geenstijl and its parent company were sent a takedown notice by the company that had commissioned the photographer, Sanoma. Before Geenstijl responded however, the pictures were deleted from the Australian site and so the issue was moot.

Poke

Except, over the course of a number of months, Geenstijl proceeded to bait Sanoma and Playboy by posting new stories repeatedly linking to new websites that had copies of the images. And that behavior eventually led to a writ against the site claiming it had infringed copyright and broken Dutch law.

An Amsterdam court subsequently ruled that Geenstijl had in fact infringed copyright because it had provided access to copyrighted documents that were not readily accessible by other means. Plus it had brought the documents to the attention of a "new" public (its readers) and had done so in order to profit from it.

Geenstijl appealed and the Appeal Court largely ruled in its favor, arguing that it was not the website but whoever had posted the photographs in each case that had infringed copyright.

However, it also concluded that Geenstijl had "acted tortiously" by "encouraging the audience of the GS Media's website to look at the illegally placed photographs."

The case then went to the Dutch Supreme Court, which decided to refer the particular question of what hyperlinks are under the law to the European Court of Justice, and that's where we are today.

Or as Geenstijl put it in a typically obnoxious post: "the hyperlink caravan is on its way to the European Court ... What began as a transparent attempt by Playboy to raise money from plummeting kiosk sales has became an epic battle for the survival of the hyperlink and the entire Internet."

The questions

There are three questions in front of the ECJ, two of them broken out into multiple parts.

The main point of interest is what the phrase "communication to the public" means in the context of the internet era. This is the legal aspect that the ECJ previous dug into in another famous case over hyperlinks, when a journalist argued that a company that provided links to articles had violated his copyright by not asking permission.

The ECJ decided that since the article was posted publicly, the link was not a "communication to the public" – a right that belongs to the copyright holder – because it had already been communicated by being posted on a newspaper site.

The question the ECJ now has to consider is effectively: ok, what if the information being linked to was not communicated to the public? What if it was posted without permission and then someone else linked to it? Does that equate to a "communication to the public"?

The subsequent questions dig into the questions that sprout from this main one: does it matter if the material has never been posted before? Does it matter if the person posting the hyperlink is aware or not aware that the material is in fact infringing copyright? And then: does it matter if the link is to an obscure part of the internet or to something readily and easily findable?

Depending on what the court decides, it could impact the entire world wide web. It would almost certainly have huge implications for search engines like Google, but it would also impact Facebook and Twitter, depending on what their users link to. It would also have an impact on any website that links to websites like Cryptome or Wikileaks.

The hearing was held today. There is no way of knowing when it will make a decision or which way it will go. But given the fact that few expected the ECJ to rule the Safe Harbor agreement illegal, it would be foolish to imagine it wouldn't make a similarly impactful ruling over hyperlinks if it felt the law required it. ®

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