The current assessment of whether hyperlinking between websites is illegal in relation to a content owner’s rights has been further clarified in a recent judgment (link) in Germany. In this case it was decided that Google is not responsible for the legality of the images found using its image search service.
The judgement clarified that an advertisement containing images protected by copyright, which are linked to by a search engine, does not infringe the copyright in those images. The defendant was the operator of a website (AOL), which was based on Google Image Search. The applicant’s website had a password protected section containing photographs which only fee paying customers could access. Photographs in this section could be downloaded, however some of the photographs were subsequently re-uploaded in breach of the applicant’s terms and conditions onto third party websites. Thumbnails of these images were then indexed on Google. The applicant (who had rights to the images) argued that the photos had been distributed illegally.
The judgement reiterated the decision in GS Media, C-160/15 which stated that the publishing of a link would infringe copyright only if the publisher knew or could reasonably have known about the illegality of the publication of the works on the other website, meaning that they had been uploaded without the owner’s consent. GS Media was concerned with the interpretation of Article 3(1) of Directive 2001/29/EC on the harmonisation of particular areas of copyright in the information society (“InfoSoc Directive”). Namely, Article 3 states that authors should have exclusive rights to authorise or prohibit communication of their work to the public, including making their work available in ways that members of the public may access them if they choose to.
The court was seeking to delineate between ordinary internet users and those that ought to know or deliberately infringe copyright. This is reiterated by the judgement of the Hamburg Regional Court 8th Civil Division | 308 O 151/17, where the judgement warns against an overly broad understanding of both communication to the public and the obligations imposed on link providers that operate for profit, especially if these handle a high number of links as set out in the GS Media judgment.
In conclusion it is clear that this legal issue has far reaching connotations. Once an image is posted on a freely accessible website, the rights owner potentially no longer has control over how other websites link to these images and how internet users access these images. From a commercial perspective, it may dissuade internet users from having images and content freely accessible on the internet. Copyright owners will need implement measures to restrict users being able to download images to their own devices (though technologically how this could actually be enforced it yet to be seen).