In November 2016, Hamburg Regional Court dealt for the first time with the question of liability when using a hyperlink to another website that contains copyright infringements. The use of such a hyperlink is always to be regarded as a copyright infringement if the linking party operates its website with the intention of making a profit. The Hamburg Regional Court was thus the first German court to follow the ECJ‘s decision of September 8, 2016.
In its ruling of June 13, 2017 (case no. 310 O 117/17), the Regional Court of Hamburg has now qualified its decision from last year. Strict liability in accordance with the principles of the ECJ must be limited to a certain extent. If, in the context of a business model with the intention of making a profit, it is not economically reasonable to carry out investigations that lead to knowledge of copyright infringements on the linked pages, liability must be excluded.
Website operator links copyright infringements
In the current case before the Hamburg Regional Court, the defendant website operator had linked to copyright infringements – unlicensed product photographs of an Amazon retailer – by means of framing with the intention of making a profit as an “affiliate” connected to Amazon. The author of the product photography did not agree to this image being used either on Amazon or on the affiliate website and therefore filed a lawsuit.
No link liability: website operator exempt from duty to investigate
In the opinion of Hamburg District Court, the operator of the affiliate website was not liable for the copyright infringement in this individual case. This was because the investigation was not reasonable for the website operator.
Even after a possible investigation at Amazon, the affiliate website operator would not have been able to find out that the reproduction of the product photograph on amazon.de was not covered by the author’s permission.
The reason for this is that Amazon had only assured the website operator of the contractual legality of the use of the product photos by the uploaders. However, the website operator could not assume that this statement was correct, as Amazon did not check the accuracy of the uploaders’ assurances itself.
Duty to investigate partly unreasonable
In order to adequately comply with the duty to investigate, the website operator should have identified the author of the product photograph itself. It would then also have had to obtain information about the legality from the author itself. However, in the opinion of Hamburg District Court, this difficult path was not reasonable for the affiliate website operator.
Above all, however, from an economic point of view, the affiliate website operator cannot be expected to carry out comprehensive preliminary research with this form of business. After all, he only receives an extremely small amount of money per “click”, which under no circumstances compensates for the research effort. A far-reaching duty to investigate would therefore destroy the business model.
Caution is still required – The decision of the Hamburg Regional Court only concerns an individual case
Even if the ruling by Hamburg District Court does not yet provide final legal certainty, many website operators can now breathe a sigh of relief. Especially those who link to other websites on their website on a large scale using an automated process.
However, caution is still required. The decision does not yet provide a precise roadmap as to when there is an obligation to investigate when setting a hyperlink and when there is not. This remains a question of the individual case.