The Genesis of Linking Limitation on the Internet

date: 15 November 2021

location: Webinar

presenters: Bartłomiej Oręziak

moderators: Bartłomiej Oręziak

themes: The Impact of Digital Platforms and Social Media on Freedom of Expression and Pluralism

Approximate viewership of the online speech

  1. Facebook

(https://fb.watch/9nltTrqAM0/):

Number of recipients: 10,300

The number of viewers: 2, 800

Reactions, comments and shares: 21

  1. YouTube

(https://www.youtube.com/watch?v=vvyqoCjt3-I ; https://m.youtube.com/watch?v=Yz0RgNoiSOs&fbclid=IwAR3UNghQ1z21LQ0_RuSHt56lo-egJ8yioIzd39ZbnMnrRYOUMcZuyF2q5Rg ):

Number of views: 1, 400

Together: 11,700 recipients of the dissemination event

Description

          On 15 November 2021 an online speech entitled „The Genesis of Linking Limitation on the Internet” presented by Bartłomiej Oręziak was published. It was organized within the framework of the Central European Professors’ Network 2021, in cooperation with the Ferenc Mádl Institute of Comparative Law, the European Association for Comparative Law and the Institute of Justice in Warsaw.

            The online speech was organized as a dissemination event of Bartłomiej Oręziak, a member of the research group titled “The Impact of Digital Platforms and Social Media on Freedom of Expression and Pluralism.”.

            The delivered paper concerns the genesis of linking limitation on the Internet what was passed by the Court of Justice of the European Union (hereinafter just: Court).

            The key is the judgment in GS MEDIA as the most important and revolutionary case in which the Court introduced the first explicit link restrictions. It was issued after the judgement in Svensson and BestWater, in which the Court, as a rule, did not introduce a restriction on the freedom of linking on the Internet.

            First of all, the author presented a number of facts. In October 2011, the publisher of famous magazine, Sanoma, took photos of Mrs. Dekker. They wanted to publish them in their magazine in December. However, at the end of October GeenStijl website owned by company GS MEDIA got a message from an anonymous user with a hyperlink reference to a website where there was a file with pictures of Mrs. Dekker (hereinafter: disputed photos).

            On the same day on GeenStijl appeared an article containing a hyperlink to the disputed photos. It was October. After Sanoma`s protest, GeenStijl website editors decided to publish a second article on the dispute which arose between them and Sanoma. This article has added a hyperlink to the imageshack.us website (where were disputed photos).

            GeenStiji publishes a third article which again contained a hyperlink referring to the disputed photos, under which Internet users posted links in the form of comments referring to various websites containing the disputed photos. According to Sanoma’s plans, the photos were published in famous magazines in December. But it is also a fact that the photos were made available on the Internet as early as October, and GeenStijl made the linking of these photos against Sanoma.

            Sanoma, Playboy and Ms. Britt Geertruid Dekker versus GS Media were pitted in the courtroom in front of the Supreme Court of the Netherlands. The litigation centered on the interpretation of the term “communication to the public” as used in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter: Directive 2001/29) (OJ L 167, 22.6.2001, p. 10–19). The national court, having doubts about the merits of the case, decided to suspend the proceedings and, pursuant to Article 267 of the Treaty on the Functioning of the European Union (OJ C 326, 26.10.2012, p. 47–390), ask three questions to the Court of Justice of the European Union for a preliminary ruling. The national court sought to ascertain, on the merits, whether and in what circumstances, if any, the inclusion on a website of a hyperlink to protected works which are freely accessible on another website without the copyright holder’s consent constitutes a “communication to the public”.

            The essence of the GS Media ruling comes down to how the concept of “communication to the public” used in the directive should be understood. Court proposes to look at it through the prism of principles and factors indicated in GS Media case. The principle of two conditions and the principle of individual assessment were presented there. The first is that the term “communication to the public” combines two conditions that need to be fulfilled simultaneously: it is the “act of communication” of protected work and making it “available to the public”.

            The second, by contrast, requires an individualized assessment that can be made after taking into account a number of complementary factors. The first factor identified by Court is the essential role of the user and the intended nature of his action. He performs the act of communication when he is fully aware of that, were it not for his action, other Internet users would not, in principle, have access to the protected work. The second factor is the very concept of “public”, which assumes an unlimited and at the same time quite large number of potential recipients. However, that the use of the term “available to the public” requires that the protected work be made available through technology other than what was previously used. In case of technology identities, we are forced to refer to the concept of “new public”, so to make a protected work more accessible to a wider audience than it did before. The third factor is the consent of the copyright holder. As the Court has pointed out in its earlier rulings, if that consent is unlimited, it must be presumed to cover all Internet users as such. On the other hand, if it has a limited scope, reference should be made to the already mentioned “new public”. The fourth and last factor identified by the Court is the profit nature of the communication. It is therefore relevant whether the user publishes the protected work in order to increase his/her profit or whether it is the other way around and he/she does so without profit. This is a key distinction because in the first case, there is a presumption that the user knows or could have known that the protected work was published without the copyright owner’s consent. In contrast, in the second case, there is a presumption of contrary content. With respect to both, there is an opportunity to prove the contrary.

            In light of the above considerations, the Court states that: “Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to determine whether the inclusion on a website of hyperlinks to protected works which are freely accessible on another website without the copyright holder’s consent constitutes a ‘communication to the public’ within the meaning of that provision, it is necessary to establish whether those links were made available without the pursuit of pecuniary gain by a person who did not know or could not reasonably have known of the unlawful nature of the publication of those works on that other website or, on the contrary, whether those links were made available for such a purpose, in a situation in which that knowledge must be presumed”.

            Referring to the FilmSpeler and The Pirate Bay cases, the author indicated that these judgments demonstrate that the principles and factors developed in the GS Media case have been consistently applied by the Court. Based on them, the Court concluded in FilmSpeler that the concept of ‘communication to the public’ within the meaning of Article 3(1) of the Directive 2001/29 must be interpreted as covering the sale of a media player containing pre-installed plug-ins, available on the internet, containing hyperlinks to sites accessible to the public on which works protected by copyright have been made available to the public without the consent of the rightholders. The author concludes that this is a new type of linking identified by the Court -linking in physical devices – linking offline, which makes the factual nature expand the circle of entities responsible for linking. In the Pirate Bay case the Court concluded that the concept of ‘communication to the public’s must be interpreted as making available and managing on the Internet an exchange platform which, through the indexing of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and share them within a peer-to-peer network. To sum up the judicial process does not change in these judgments, it is based on the same factors and principles as in the case of GS Media. The inference process does not change the products of this inference change.

            Author shares with us his reflections on the Court linking restriction model and present selected problems related to this:

  1. The issue of copyright holder’s consent

It is not possible to establish, even with due diligence, that all protected works which a professional entity has made available have been placed on the Internet with the consent of the copyright holder. The consequence of this lack of certainty is to operate on the presumption that the person knows or with due diligence could have known of the unlawful nature of the publication of the protected works.

  1. The problem of subjective assessment

The subjective factor can be very difficult for the domestic justice system to interpret because it is an examination of the attitude of the offender.

  1. The problem of the profit factor

As a rule, the copyright holder is not interested in whether his/her rights have been infringed for profit or not. If the Court really wants to protect his/her rights effectively, according to the author, it should apply another, more useful factor. For example, liability under the provisions of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1–16).

  1. The problem of potential inconsistencies between Member States

Courts in different member states may apply the principles and factors proposed by the Court in different ways. This may lead, instead of harmonization, to a de-harmonization of information society rules.

  1. The problem of freedom of expression

This type of interpretation is an area where freedom of expression can be easily infringed. One must be very careful in this area. In the judgments cited, no such violation occurs. Indeed, these judgments are the foundation from which the arguments in another cases can be born, where there may be legitimate doubts in compliance with the freedom of expression. It is about Renckhoff case, what is broadly described by the author, and it will be published by the Ferenc Mádl Institute of Comparative Law under the Central European Professors’ Network 2021.

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