According to the advocate general, the hyperlinks cannot be considered infringement, as they do not "make available" the infringing images, nor can be considered an "act of communication" as understood under the EU's copyright directive. These acts were committed by the third-party sites publishing the images, which is a separate question to the case against GeenStijl.
In other words, the links on GeenStijl are not indispensable to internet users accessing the infringing images. Furthermore it is not relevant whether GeenStijl knew or should have known that the images on other sites were copyright infringement, the AG said. He noted further that "any other interpretation of the notion of ‘communication to the public’ would considerably impede the functioning of the internet and would infringe one of the principal objectives of the Directive, namely the development of the information society in Europe".
The AG's opinion is not binding, and a final judgement by the EU Court must still be issued, after which the Dutch High Court will rule in the case.
