Date: November 21, 2016
Modified November 14, 2023
Written by: Valerie Lipman
Reading time: +/- 2 minutes
A social media user who posted a link infringed copyrights on the photo automatically attached to this link. This was ruled by the District Court of Amsterdam on October 2, 2015. A rather scary ruling in my opinion. Because who does not occasionally post a link from a website on Facebook? I bet almost nobody thinks about this, let alone that the average user of Facebook or Twitter knows that this option can be turned off.
Granted, this was a user who was acting professionally and knew he could choose not to include a photo with the link. However, for purposes of establishing infringement, it is irrelevant whether or not the user was acting from a professional perspective. The circumstance that the user knew that the automatic posting option could be turned off did factor into the court's ruling. Whether the user realized that he was infringing if he did not turn off that option, I do wonder. It also remains to be seen how the judge would have ruled if the social media user did not know that that option could be turned off. In any case, the infringement in this case was attributed to him, even though he had thus not posted the photos himself at his link.
Myjour has an online newsstand, where you can buy single articles from newspapers and magazines. Through Twitter and Facebook, Myjour had shared a hyperlink to an article from Panorama magazine. This article could also be purchased through Myjour. The link posted by Myjour was accompanied by a photo from the article. If you clicked on the link, you were directed to a pay wall, where you could purchase the article.
The creator of the photo had not given permission for the photo to be used with the link posted by Myjour on social media. He demanded an injunction and damages.
In principle, the copyrights to a photograph belong to the creator of that photograph. These copyrights give the rights holder the exclusive right to publish and reproduce (copy) the photograph. An altered, modified copy is also a reproduction. This means that without the creator's permission it is not allowed to copy and disclose his photograph. Even more specifically, this means that you are not allowed to post other people's photos on your own website without the permission of the creator of that photo. Modifying the photo, for example by cropping it, also falls under reproduction.
Thus, copying photos on your own website is not permitted. The inclusion of a hyperlink to a website with photos or other copyrighted material is, in principle, permitted. The protected work is not reproduced. This is because the link refers the public to the original website, which contains the original work of the rightholder. As long as the original website is freely accessible, the public that is reached with that link is in principle the same (as broad) as the public that can visit the original website. Therefore, there is then no new disclosure because no new audience is reached. This is different if a link is placed to a website where access to a particular audience is restricted. Think of a website that can only be visited with a password or after payment. It is not permissible to include a hyperlink to, for example, photos on that restricted page, so that the link suddenly makes them accessible to a wider audience. Hyperlinks to copyrighted works on freely accessible websites are therefore permitted in principle. The same applies to embedded links. The copyrighted material is then only on the original server and can be viewed via the embedded link.
The problem here was that a picture had been placed above the hyperlink. Myjour did claim that this was a link, but could not prove it. The court therefore assumed that the photo was a separate file that had been copied from the original website and republished on another website. A reproduction, therefore, which the author could oppose. However, the photo had not been copied and posted by Myjour, but by the social media itself. When hyperlinking, social media like Facebook and Twitter automatically place a random photo from the linked website with that link. Myjour therefore argued that it had not posted the photo itself and therefore could not be held responsible for the posting of that photo.
Here the judge thought otherwise. This is because Myjour was aware of the automatic posting and of the possibility of turning off this action. Myjour had therefore knowingly used this service, according to the judge. The disclosure was therefore to be imputed to it.
Myjour still argued that the photo was allowed as a quote. Although it is allowed under circumstances to copy part of a text or even a (small) photo as a quote in a larger whole, the source, including the name of the creator, must always be mentioned. Since no source was mentioned with the photograph, the reliance on the right to quote did not apply.
Since the photograph had been posted without permission, the creator was entitled to compensation for the damages suffered. The court again awarded compensation in the amount of a reasonable license fee. An additional compensation of another 25% was also awarded for the fact that the creator's name was not mentioned with the photo. The requested storage of 100% as an incentive to prevent such infringements was rejected. According to the law, the creator is only entitled to compensation for damages actually suffered, while the storage has the character of a fine, which is not allowed. Finally, Myjour was ordered to pay the litigation costs incurred by the creator of the photo.
The ruling makes it clear once again that we need to be particularly vigilant when we post anything on social media and especially what the social media does with it.
This page was last updated on August 16, 2023.
As attorneys for business owners , we understand the importance of staying ahead. Together with us, you will have all the opportunities and risks in sight. Feel free to contact us and get personalized information about our services.