Court of Justice of the EU considers questions of the GeenStijl case Playboy hyperlinks

The Supreme Court has suspended the case between GeenStijl and Sanoma about linking to Playboy photos. The judicial body first wants to answer some questions about the interpretation of legal rules with regard to links from the Court of Justice of the European Union.

The Supreme Court cannot yet make a decision on the appeal in cassation in the case between GeenStijl and Sanoma. That dispute has been going on since 2011, when Sanoma sent a subpoena to the weblog for linking to leaked Playboy nude photos of Britt Dekker. The central question is whether linking to photos on the Internet can be regarded as copyright infringement.

The Court of Appeal previously ruled that this was not the case, but that placing a hyperlink can be unlawful if it ‘facilitates that third parties can take cognizance of an unlawfully published work’. GeenStijl appealed against this. However, the Supreme Court considers it necessary for the CJEU to answer a number of preliminary questions before a decision can be taken.

Among other things, the Supreme Court wants to know whether the linking as GeenStijl did as a ‘communication to the public’ within the meaning of art. 3 paragraph 1 of Directive 2001/29 must be seen. The court also wonders whether the linking person should be aware of whether the administrator of the linked site did not have permission to publish. Finally, the Supreme Court does not know to what extent it should count whether the site to which the link is made is easy to find for the general internet public.

It is not known when the Court of Justice of the European Union will answer the questions. This will probably take at least a few months, but can also take longer.