After Geenstijl received another summons, the blog published an article on it in which it included a hyperlink to Imageshack where some of the photographs still were hosted.

[citation needed] The Amsterdam District Court concluded that the hyperlinks published by Geenstijl constituted a "communication to the public" in the sense of article 3 of the Infosoc Directive.

[citation needed] The Court of Appeal partially overturned this decision and held that as the internet is an openly accessible network, the person that publishes the work on the internet is (in this case: the person placing the photographs on FileFactory) the one that communicates it to the public.

Sanoma did not agree and argued that these specific files were not accessible to the public unless someone was handed the key to the "digital safe".

[2] The Supreme court relies on the previous decisions on hyperlinking in the ECJ cases Svensson and BestWater.

[16] The European Court of Justice held that embedding videos that are freely available does not constitute an infringement under article 3.

The courts held that hyperlinking to a source that is already open for anyone would not constitute a communication to a new audience, however in the Svensson case this had been done by the rights holder.