GS Media v Sanoma and others – background

Sanoma, the publisher of the monthly magazine Playboy, commissioned a photographer, Mr Hermès, to conduct a photoshoot of Ms Dekker. Ms Dekker appears regularly in television programmes in the Netherlands. The photographer gave Sanoma full power of attorney to represent him for purposes of protection and enforcement of his intellectual property rights arising from the aforementioned commission.

On 27 October 2011, GS Media, which operates the GeenStijl website, published a report with the title ‘[obscenity] leaked! Nude photos … Dekker’. The report also included part of one of the photographs in the top left-hand corner (‘the cutout’). The report ended with the following words: ‘And now the link with the pics you’ve been waiting for. Whoever [obscenity] first, [obscenity] first. HERE. …’. By clicking on a hyperlink, indicated by ‘HERE’, readers were directed to an Australian data-storage website called Filefactory.com. By clicking on the following hyperlink, they could open a new window which contained the button ‘DOWNLOAD NOW’. By clicking on the button, the readers opened a file in zip format containing 11 files in pdf format, each of which contained one of the photographs.

Despite receiving demands from Sanoma, GS Media refused to remove the hyperlink in question. However, the photographs were removed from the Filefactory.com website.

On 7 November 2011 a report appeared on the GeenStijl website with the title ‘Blote [Dekker] gaat GeenStijl aanklaguh’ (‘Naked [Dekker] to sue GeenStijl’), referring to the dispute between GS Media and Sanoma and Others regarding the photographs leaked by GeenStijl. The report ended with: ‘Update: Not yet seen the nude pics [of Dekker]? They are HERE’. That report, too, contained a hyperlink to the Imageshack.us website, where one or more of the photographs in question could be found. The Imageshack.us website also complied with Sanoma’s request to remove those photographs. A third report with a hyperlink leading to the photos appeared on GeenStijl on 17 November 2011 with the title ‘Bye Bye Wave Wave Playboy’. On the GeenStijl forum users then posted new links to other websites where the photographs could be viewed.

The photographs of Ms Dekker were published in Playboy magazine in December 2011. Sanoma and Others brought an action at the Rechtbank Amsterdam (District Court, Amsterdam), claiming in particular that by posting hyperlinks and a cutout of one of the photographs in question on GeenStijl, GS Media had infringed the copyright of Mr Hermès and acted unlawfully towards Sanoma and Others. The Rechtbank Amsterdam (District Court, Amsterdam) largely upheld those claims.

The Gerechtshof Amsterdam (Court of Appeal, Amsterdam) set aside the judgment of the Rechtbank Amsterdam (District Court, Amsterdam), holding that GS Media had not infringed the copyright of Mr Hermès because the photographs had already been communicated to the public by being posted on the Filefactory.com website. The Gerechtshof Amsterdam (Court of Appeal, Amsterdam) did not rule on whether or not the posting of the photos on the Filefactory.com website was an infringement of the copyright of Mr Hermès. On the other hand, it ruled that by posting those hyperlinks GS Media’s conduct in respect of Sanoma and Others had been unlawful because it encouraged visitors to GeenStijl to view the photographs illegally posted on Filefactory.com which, without those hyperlinks, would not have been easy to find. In contrast, the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) held that GS Media had infringed the copyright of Mr Hermès by posting a cutout of one of the photographs on the GeenStijl website.

GS Media and Sanoma and Others brought an appeal and a cross appeal respectively at the Hoge Raad der Nederlanden (Supreme Court of the Netherlands). GS Media challenged the finding of the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) that it had infringed the copyright of Mr Hermès by posting on its website a cutout of one of photographs with its report on the photographs.

Sanoma and Others challenged the ruling of the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) that GS Media had not made the photographs available to the public by posting the hyperlinks on its website. Sanoma and Others argued before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) that communication to the public can be deemed to take place if there is a link to a website on which a work has been placed without the consent of the copyright holder, whether that work was published previously with his consent or not.

In addition, Sanoma and Others claim that the Filefactory.com website had put in place restrictions within the meaning of paragraph 31 of the judgment in Svensson and Others (C‑466/12, EU:C:2014:76), ‘which the users of GeenStijl were able to circumvent through the intervention of GS Media. The pirated photographs were thereby made available to a wider public than the public for whom the photos had been placed in the “digital safe”; at least those photographs were thus made accessible to a public who would not (easily) have been able to find them without that intervention and they would thus have remained inaccessible for that category.’

In its examination of the cross appeal, the Hoge Raad der Nederlanden underlined that prior to the posting of the hyperlinks on the GeenStijl website by GS Media the photographs were not unfindable but, at the same time, they were not easily findable, with the result that the publication of the hyperlink had a highly facilitating character. In these circumstances, the Hoge Raad der Nederlanden decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)(a) If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29?

(b) Does it make any difference if the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?

(c) Is it important whether the “hyperlinker” is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way?

(2)(a) If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?

(b) In answering question 2(a), is it important whether the “hyperlinker” is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?

(3) Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?’