In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast.

Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result?

This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them.