CJEU Ruling: More Questions than Answers

On Thursday, the European Court of Justice gave its ruling on the GS Media v Sanoma-case regarding hyperlinking to infringing content. The digital world has held its breath in anticipation – would the ruling upset the way we link from websites and blogs? Would it make commercial-scale pirate services legal? The Attorney General’s opinion from this spring pointed to the latter. An expert speculated about the outcomes the other day to Netopia.

In the end, the CJEU found a middle ground saying that linking to illegal content is illegal… sometimes. If there is intent – such as with commercial-scale piracy – or in case of knowledge – for example a notice-and-take-down-request – or if it’s obvious that the content is infringing – free versions of movies still playing in cinemas, anyone? In such cases linking is illegal. Students and bloggers can still claim ignorance, Popcorn Time not so much.

While this may seem like a fair balance, the big question is if all the courts around Europe can interpret this in a coherent way. The CJEU must provide something that others can use for guidance, otherwise each and every case would have to go to Luxemburg (perhaps useful as the CJEU judges “pray” for more cases to try, but probably not a great recipe for rights-holders and online services…).

Confusion remains, but at least lawyers will be busy.