## Facts

- GS Media BV operated the Dutch news and entertainment website *GeenStijl*.
- An anonymous source sent *GeenStijl* a hyperlink to a file-hosting site containing unpublished nude photographs of Britt Geertruida Dekker intended for a forthcoming issue of *Playboy*, published in the Netherlands by Sanoma Media Netherlands BV.
- *GeenStijl* published an article that included a hyperlink enabling users to download the photographs from the host site.
- After Sanoma demanded removal, the host removed the file, but *GeenStijl* later published additional articles with new hyperlinks to other sites where the photographs remained accessible; users also posted additional links in the site’s forum.
- Sanoma, Playboy Enterprises International Inc., and Dekker alleged the photographs were uploaded to third-party sites without authorization and that GS Media’s linking infringed copyright and was unlawful.

## Issues

1. Whether posting a hyperlink to a protected work that is freely accessible online but placed there without the rightholder’s consent constitutes a “communication to the public” under Article 3(1) of Directive 2001/29/EC.
2. Whether liability depends on whether the person posting the hyperlink knew or should have known that the initial online availability lacked authorization.
3. Whether posting the hyperlink for profit affects the legal assessment, including any presumption of knowledge.

## Decision

- The CJEU ruled that hyperlinking to works made available online without rightholder consent can constitute a “communication to the public” under Article 3(1).
- If the linker knew or ought to have known the work was unlawfully posted, providing the hyperlink is a communication to the public.
- Where hyperlinks are posted for profit, there is a rebuttable presumption that the linker knew the work was unlawfully published; unless rebutted, posting the link constitutes a communication to the public.
- The CJEU left application of these criteria to the referring national court.

## Legal Principles

- “Communication to the public” requires an act of communication and a communication to a public; hyperlinking may satisfy this when it provides access to unlawfully posted works with the requisite knowledge.
- When the rightholder did not consent to the initial online posting, linking to that source may reach a public not contemplated by the rightholder for purposes of Article 3(1).
- Knowledge is central: a linker is liable when they intervene with awareness (actual or constructive) that the content is unlawfully available.
- Profit motive alters the analysis: for-profit linking triggers a rebuttable presumption of knowledge, shifting the burden to the linker to show lack of knowledge despite reasonable checks.
- Non-profit linkers are not presumed to know of illegality; liability requires proof they knew or should have known (including after notice).

## Conclusion

The CJEU held that linking can amount to a copyright-relevant communication to the public when the linked work was posted online without authorization and the linker knew or should have known of that illegality, with a rebuttable presumption of knowledge for links posted for profit.


GS Media BV v. Sanoma Media Neth. BV, Case C-160/15 (C.J.E.U. 2016)