Landgericht Hamburg first German court to confirm that anyone who places a link to a page containing stolen images may be liable for copyright infringement
Read this article in German here.
A petition has now been set up on change.org with the aim of overturning the ECJ’s decision. If you would like to add your name to the petition, click here.
Following the European Court of Justice (ECJ) last summer, for the first time a German court – the Landgericht Hamburg – has now determined that simply linking to a website which contains a copyright infringement could in itself constitute a rights infringement. This decision will have an untold impact on the freedom of information and communication, since up to now it has always been generally accepted that a link cannot violate copyright.
With its judgment of 8 September 2016 (ref. C-160/15 – GS Media), the European Court of Justice (ECJ) ruled that posting a hyperlink can constitute a copyright infringement if the website to which the hyperlink leads has published a copyrighted work without the consent of the author. This should at least apply in cases where the link in question was made available in the pursuit of financial gain and the party placing the link failed to check beforehand that the affected work on the website to which the hyperlink leads was not published without authorisation.
While the judgment made the headlines in Germany, it nevertheless resulted in a good deal of uncertainty among many website operators, authors and legal experts. Indeed the ECJ left open the questions of when exactly a link can be assumed to have been placed “in the pursuit of financial gain”, the extent to which checks need to be carried out, and whether these new principles still apply even if they impact negatively upon freedom of information and expression on the internet. Now for the first time a German court has made a decision which brings more clarity on this issue. In November, the Landgericht Hamburg was the first court required to apply the new principles laid down by the ECJ in German law.
This new decision from Hamburg was based on the following facts: A German photographer came across an article on a website which had been illustrated using a photo he had taken. The photographer had not consented to the photo being used. As such, this was a copyright infringement – even under existing legislation. However, the photographer also became aware of the fact that a link to the website containing the unauthorised photo had been placed on a website operated by a third party – the defendant in the German proceedings. The defendant had not added the photo to its own website, but merely placed a text link to the page where the photo was shown.
The most recent case law of the ECJ had to be understood in such a way that even such a simple text link could constitute a copyright infringement. But it had not yet been made clear when such an infringement could be assumed.
First German decision concerning liability for links to copyright infringements
In order to ensure greater legal certainty in this respect, both for website operators who place links and for authors, the Leipzig law firm Spirit Legal LLP conducted a test case for a photographer in order to clarify how German courts would implement the European requirements in practice.
In its highly detailed ruling (ref. 310 O 402/16) of 18 November 2016, which is now available, the Landgericht Hamburg confirmed the ECJ’s case law and decided that even simply placing a hyperlink to an unlicensed photograph may constitute a copyright infringement. This should apply in particular if the website operator has acted in the pursuit of financial gain. The Landgericht Hamburg took the view that this pursuit of financial gain should depend not on the specific link, but on the website containing the link as a whole.
Frequently Asked Questions (FAQs), last amended 12 December 2016
Attorney-at-law Dr. Jonas Kahl, LL.M., expert on copyright and media law at the Leipzig law firm Spirit Legal LLP, answers the most important questions about the new decision from Hamburg:
Who is affected by the decision?
The decision essentially affects everyone who places hyperlinks on the internet. But it is especially significant for anyone who does so in the pursuit of financial gain. In fact the Landgericht Hamburg now places particular demands on such website operators. In future, before placing a link to a site they must first check that site for any copyright infringements. If they fail to do so, they will be exposing themselves to the risk of an author taking legal action against them because of the link they have placed.
By contrast, anyone not acting in such pursuit of financial gain shall only be liable for their links if – even without performing any checks – they had positive knowledge, or should at least have been aware, of the fact that they were placing a link to a copyright infringement.
When exactly is there such a “pursuit of financial gain”?
Back in the summer, the European Court of Justice left this question largely unanswered. Now the Landgericht Hamburg’s decision has brought more clarity. According to said decision, it should not depend on the pursuit of financial gain by the link as such; instead, the crucial factor is the website operated by the placer of the link as a whole. Specifically, the Landgericht Hamburg states (freely translated from German original):
It is true that the ECJ does not define exactly which actions must be performed in the pursuit of financial gain, meaning one might ask whether it is the placement of the link itself, the operation of the specific subpage with the link, or the operation of the internet site as a whole which is supposed to serve the pursuit of financial gain. However, the chamber does not understand the ECJ case law in a narrower sense to mean that the individual placement of the link should be intended directly to achieve (higher) financial gains (for example by way of remuneration for clicks). This is because the ECJ only uses the criterion of the pursuit of financial gain to determine whether it is reasonable to expect the placer of the link to verify the legal situation with regard to the linked page. Whether this is reasonable, however, depends not only on whether the placement of the link is directly intended to achieve financial gains, but solely on whether the placement of the link occurred in the context of an internet site which as a whole serves at least in part to pursue financial gains.
What are the practical consequences of this decision?
In particular for all internet users who act commercially or in the pursuit of financial gain online, the decision by the Landgericht Hamburg entails a massive increase in their obligations to perform checks as well as their liability. To rule out the possibility of being sued for copyright infringement, a party placing a link should in future always check beforehand whether the site operator has been granted the necessary rights to photographs published on the site. If this is not the case and they do not wish to run the risk of being held liable, then they should refrain from placing the link.
The Landgericht Hamburg did not specify the extent of these obligations to perform checks. As such, it remains unclear whether a party is merely required to attempt to clarify the legal situation on the linked website or whether they must find conclusive proof that the linked page has obtained all the necessary rights.
The Landgericht Hamburg merely determined the following (again, translated from the German original):
Any party acting in the pursuit of financial gain [is] subject to a strict standard assumption concerning fault: That party is expected to perform checks to ascertain whether the linked content has been made accessible lawfully, and the refutable presumption is made that, if permission has not been granted, the party is aware of this fact.
How will this case law impact upon the freedom of information and communication?
This development in case law on liability for links is shaking the internet to its very foundations. It can be assumed that, when in doubt, individuals will in future refrain from placing a link instead of checking the target page in detail or exposing themselves to a risk of liability. In the medium term, such self-censorship will have untold negative impacts on the freedom of information and communication online.
In this regard, however, the Landgericht Hamburg shares the view of the ECJ that these new obligations for the placer of a link to perform checks “should of course serve to strike an individual balance, taking into account the specific circumstances of the case, between the author’s property interests on the one hand and the communication interests of the party placing the link on the other”.
It is our belief that in practice the fear of being held liable will lead to considerable chilling effects, and have a lasting impact not only on online reporting by media companies and bloggers, but also on online marketing.
Does the decision only affect websites, or social media as well?
The decision does not provide any reason why this case law should not also be applicable to social media accounts used in the pursuit of financial gain. This is especially true of accounts and fan pages of companies and organisations. It is conceivable that there will even be impacts in the field of political opinion formation.
Is the decision also applicable to online advertising, such as AdSense and display advertising?
The case law does not differentiate between advertising and editorial posts. Accordingly, the website operator is liable for all links leading from its page to external websites. There is no clear reason why explicitly commercial links from ads should be exempt from liability. Indeed these too have been knowingly and intentionally placed by the website operator, for example by participating in affiliate partner programmes. In cases of rights infringements on the linked pages, this broad liability means that claims are possible against all site operators who display corresponding advertising. Also considering potential claims for recourse, there are considerable potential consequences for advertising networks, but also for advertisers themselves.
What happens if the content of the linked page changes after the link has been placed?
At present we can only speculate about the answer to this question. There is much to suggest that in future this, along with similar questions of detail, will be clarified by the courts based on the standard assumptions about where fault lies.
In its decision, what did the Landgericht Hamburg consider to be the value of the matter?
The Landgericht Hamburg’s decision assumed the value of the matter to be €6000.00. It justified this value as follows (translated from original German):
Although the contested infringing act is only a link, from a legal perspective this should – as stated – nevertheless be judged as an individual act of making something available. In addition, the design covered by the injunction was used in a form not permitted under Section 23 of the German Copyright Act (UrhG), in turn increasing the severity of the infringement. A value in dispute of €6000.00 is therefore deemed (still) appropriate.
Is the decision final?
The defendant has already accepted the interlocutory injunction as the final decision in the matter.
We too have endeavoured to see as much of the bigger picture as we possibly can: Here are a few opinions of colleagues and from the media on the Landgericht Hamburg’s ruling: