Liability for Hyperlinks: German Court Increases Responsibility of Website Operators

The Regional Court of Hamburg recently applied for the first time the new decision by the Court of Justice of the European Union (CJEU) regarding the liability for hyperlinks and further increased the risks and responsibilities for social media website operators.

The EU Court Decision

The CJEU held in September 2016 that using a hyperlink may constitute an infringement of copyright law, if (a) the linked website to contains infringing content, (b) the hyperlink was provided with the intent to realize profits and (c) the person providing the link did not review the content on the linked website.

The Hamburg Court Decision

Following the judgment by the CJEU the Hamburg Regional Court concurred with the criteria established by the CJEU and held that using a hyperlink may constitute an exploitation of copyrighted works pursuant to the German Copyright Act.

Subject of the case was a hyperlink to a website which contained a picture that was made available to the public without consent by the rights holder. By referencing the decision by the CJEU the Regional Court of Hamburg held that by using an hyperlink the picture was made available to the public, even though the work was already available on the linked website. With regard to the intent to realize profits the Regional Court argued that a broad interpretation needs to be applied. Further, the Court held that the person using the hyperlink did not meet the burden of proof and failed to show that a sufficient review of the admissibility of the content on the linked website was conducted.

Potential Impact

Not only does this decision by the Regional Court of Hamburg contradict the established jurisprudence by the German Federal Court of Justice in Karlsruhe holding that an online service which offers links to articles in a protected database is not in violation of copyright and competition law, but it also puts social media website operators at risk of violating copyright laws by not being able to assess the legal situation of content on linked websites.

Social media website operators should closely monitor the subsequent appeal hearing by the Higher Regional Court as well as other judgments in other EU member states and their interpretation of the aforementioned decision by the CJEU.