A remarkable ruling in The Netherlands today where a judge decided that one of the most popular websites in the country which linked to content which was ‘leaked’ is guilty of breach of copyright as well as breach of privacy. The ruling could potentially have a big impact on online journalism.
The website GeenStijl.nl, which is a controversial, but very popular site in the Netherlands, last year placed a link to photo’s of a Dutch celebrity of a photoshoot for the Dutch version of Playboy. The photos were according to GeenStijl leaked by someone inside the offices of the publisher, which makes the ruling even more remarkable.
Let’s first look at the case. What exactly happened?
In October 2011 GeenStijl received a tip from an anonymous person in which that person linked to the website Filefactory.com. On that site the leaked pictures were uploaded. GeenStijl didn’t hesitate and made the link public on their site, even after it was mentioned in a tv-show that the pictures were leaked. In a post about the pictures they linked to the pictures telling people who were interested in the pictures to go and have a look.
Filefactory then was summoned by the publisher (Sanoma) to remove the pictures, which they did. The pictures however by that time were already placed somewhere else, on the website imageshack.us. Again after the publisher summoned removal those pictures were taken down. But by that time the pictures were spread all over the web. The post which linked to the original was still online however and in the comments people were placing links to new places on the web where the pictures could be seen.
Publisher Sanoma summoned GeenStijl to take down the post and the links in the comments, but the website didn’t respond, so the publisher decided to sue. At that point GeenStijl wrote a new post about the fact that they were being sued. At the end of that post they placed a sentence saying “Haven’t seen the pictures yet? Go check them out HEEEERRREEE” (But then in Dutch off course), with a link to the pictures..
The publisher Sanoma claimed a lot of things in court. They claimed GeenStijl breached copyright as well as portrait right of the celebrity involved. They even claimed there was a privacy breach because it had invaded her personal life (remember this girl posed for a magazine in which you don’t wear that many clothes when they take your picture…).
Sanoma wanted GeenStijl to remove the posts, pictures and links and to ask Google to remove and indexed pages as well. Next to that they wanted to know who leaked the pictures in the first place and, off course, they wanted money for lost sales.
GeenStijl defences itself on several levels, some of which are not interesting here. But others are. GeenStijl claims they are not the ones who made the pictures public, they after all weren’t the ones who uploaded the pictures. In fact, they claim, it was somebody from inside the publishers offices who did exactly that. Based on the IP address or the person tipping the site about the link they figured out that that e-mail was sent from within the offices of Sanoma.
GeenStijl also claims they didn’t reproduce the content, they just linked to it. Another thing which they put up in their defence is journalistic reasons. They say it was their journalistic obligation to link to the leaked pictures.
The court says that without GeenStijl publishing the links there would have been only a few people who would have seen the pictures. This because the pictures were placed on sites (Imageshack and Filefactory) who have a no-index on them. By placing the link GeenStijl facilitated the photoshoot to become public. They are the ones who made sure the public could see them and they knew the pictures were meant for future publishing in the magazine.
The judge feels that context is in order in this ruling. Maybe GeenStijl wasn’t the one who reproduced the images, they did make the images public and thus facilitated this. The journalistic reasons that GeenStijl put up in their defence were wiped off the table by the judge based on the language used in the article, which didn’t hint at journalism, but purely pushed people to go and take a look.
Finally another reason why the judge felt GeenStijl was to blame was the fact that they clearly had a financial reason to link, it would make them a profit.
The judge also ruled that GeenStijl was guilty of breach of privacy and portrait for the celebrity on the pictures. Her portrait right was breached because she didn’t get any money for the leaked pictures but would get paid based on the number of magazines sold. The court even felt her privacy was breached because even though she voluntarily took part in the photoshoot, the leaking of the pictures ‘got her by surprise’ and influenced her personal life.
In the end the judge didn’t rule in favour of all the claims done by the publisher. For example the site now doesn’t have to take down the post or the links or ask Google to remove any links because the pictures are not there anymore and the links which are there go to a dead page.
But because they were found guilty for breach of copyright, privacy and portrait rights they do need to pay up.
So what do we think of all of this? Is this a bogus ruling, does the judge have a point? And most importantly: what does this mean for (online) journalism and linking to other sites?
The ruling itself is very thin, let’s start with that. There are definitely reasons for understanding the ruling in this specific case. They were after money, they did link to a ‘private’ place and there was no ‘journalistic ethics’ involved here.
The problem however with this ruling is that it could set a precedent. Any link to something not public could be treated like the links in this article. That would mean that ‘breaking’ news will become harder. What if a newspaper links to something new? And what for example would this judge say about Wikileaks?
There is a lot to debate over this. So let’s open up the floor: what do you think?