The Court of Amsterdam recently ruled in the case between Sanoma and GeenStijl. GeenStijl were wrong in placing a hyperlink referring to Britt Dekker's nude photos for Playboy. This is the first time that the use of hyperlinks has been regarded as an infringement of copyright by a court in the Netherlands.
Sanoma, the publisher of Playboy, did a photo shoot in October 2011 with Britt Dekker, who is renowned for TV programmes like Take me Out and Meisjes in de Jungle (Girls in the Jungle). Playboy only published the photos in December of that year. In the meantime, the photos had been widely distributed on the internet, which meant Playboy's photo shoot became anything but exclusive, after unauthorised third parties got their hands on the photos in the days that followed the photo shoot. GeenStijl then placed a hyperlink on its website, despite Sanoma's explicit request not to do so. The link was used to redirect visitors to a zip-file at Filefactory.com: an Australian website for data storage and date exchange. What followed was a game of cat and mouse between Sanoma, GeenStijl and countless internet users. Although Sanoma occasionally succeeded in removing the photos from various websites, GeenStijl managed to find a new website each time, where the photos had popped up, and was able to create a new hyperlink.
While this is not the first time that a Playboy photo shoot has been leaked, this particular case is remarkable. The reason: Sanoma filed a case against the party that publicised the photos via a hyperlink and not against the party that had actually placed the photos on the internet. According to Sanoma, GeenStijl not only infringed the copyright of Sanoma, but also the image rights and privacy of Britt Dekker. When considering this case, the court examined whether the actions of GeenStijl should be regarded as disclosure from a copyright perspective, or whether GeenStijl did nothing more than simply place a link to a file already available on the internet. The court partly based its ruling on the Copyright Directive, which defines the term ‘disclosure’, and used it assess three criteria: intervention, (new) public and profit making. The Court ruled that the actions of GeenStijl fulfilled all three criteria.
In principle, placing a hyperlink, which redirects to a location on the internet where certain material is accessible to the public, is not disclosure in its own right. Actual accessibility is afforded to the public by the website to which the hyperlink refers. However, in this particular case, the photo shoot had not been released to the public in a way that made it accessible and findable. Because the photo shoot became available to the general public due to the GeenStijl's hyperlink, the judge ruled that GeenStijl had committed a deliberate act of intervention.
Considering the photo shoot was impossible or very difficult to find before the hyperlink was placed, the judge ruled that GeenStijl also complied with the (new) public criterion. When disclosing the photo shoot to the public, the holder of the copyright did not intend to award access to visitors of the GeenStijl website. As far as the profit-making criterion was concerned, the court ruled that GeenStijl placed the hyperlink with the intention of attracting more visitors to its website. Because the story about Britt Dekker was the most viewed topic on GeenStijl's website in 2011, the court ruled that placement of the hyperlink was also motivated by profit-making.
Besides an infringement of copyright, the Court was of the opinion that GeenStijl also infringed the image rights of Britt Dekker as well as her privacy, and thus ruled completely in favour of Sanoma. GeenStijl was ordered to pay compensation to Sanoma, was banned - subject to a penalty - from publicising the photo shoot in any way, shape or form and, finally, was also ordered to pay the legal costs incurred by Sanoma. GeenStijl now intends to appeal the decision. “This is unacceptable because we did not steal anything. We placed a link. We reported news. We also cannot accept the inability of judges to understand the internet. Without hyperlinks, there would be no internet. And without the internet, there would be no news” - that was the response of GeenStijl on its website. The ruling in the appeal case could have major repercussions for journalism and probably many other matters relating to intellectual property.
Editorial: Niké Mion