Setback for Playboy in hyperlinks case

Images of Dutch TV personality Britt Dekker were linked to by a website called GeenStijlImage copyright
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Images of Dutch TV personality Britt Dekker were linked to by a website called GeenStijl

A top EU lawyer has said a website did not break the law by linking to Playboy photographs that had been republished on another site without permission.

A website operated by GS Media had posted links to an Australian site that was hosting the Playboy images.

An advocate general has now sided with the case of GS Media, against a claim of copyright infringement filed by Playboy’s publisher.

The pictures were from a photo shoot with Dutch TV personality Britt Dekker.

The argument between GS Media and Playboy publisher Sanoma Media Netherlands dates back to 2011, when a blog on the GS Media website GeenStijl first linked to the Britt Dekker photographs.

However, posting a hyperlink to photos published without authorisation does not in itself constitute copyright infringement, according to Advocate General Melchior Wathelet in an Opinion to the Court of Justice of the European Union (CJEU).

Mr Wathelet’s Opinion is not ultimately binding on the court, though a ruling is set to follow in the coming months.

“This is only an opinion and the question is whether it will be followed,” a spokesman for Sanoma said.

A spokesman for GeenStijl praised the advocate general’s findings.

“I think this is an important conclusion,” said Prof Mireille van Eechoud at the Institute for Information Law at the University of Amsterdam.

“Although [GeenStijl] facilitate access they don’t actually have an indispensable role in the communication chain.”

Ruling to follow

Prof Eechoud told the BBC that the advocate general was able to make this point thanks to the fact that the Australian website had no role in GeenStijl’s decision to post links to the hosted images.

“I have to say that the advocate general does a very elaborate analysis of all the case law on point that has come before and it’s closely argued,” said Prof Eechoud.

“I would expect [the court] to follow it but they’ve been known not to, so that’s difficult to predict.”

Should that happen, the decision would then go back to the Dutch Supreme Court for further consideration.

The status of hyperlinking, according to Prof Eechoud, has historically not been clearly defined across EU member states and this in part accounts for the CJEU’s role in cases like this one.

In 2014, a similar case was brought before the CJEU in which Swedish journalists argued that a web company that posted links to online news articles had broken copyright rules.

The court ruled, however, that because the articles in question were online already, they were “freely available” and so posting links to them would not constitute infringement.

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