12 MAGYAR JETI ZRT v. HUNGARY JUDGMENT pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. 48. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention. 49. In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” 30. In judgment no. 1 BvR 1248/11 of 15 December 2011 the German Federal Constitutional Court pointed out that the provision of a link in an online article was protected under the German Basic Law. The discussion process necessary for the formation of opinion, protected by the Basic Law, included private and public information about third-party statements, and also therefore the purely technical distribution of such statements, regardless of any associated expression of opinion by the distributor itself. The Federal Constitutional Court stressed that by placing a hyperlink leading to another website, the person or organisation doing so did not automatically make the content of the website its own opinion. Lastly, it pointed out that the German Federal Court had correctly balanced the conflicting rights when it had found that the placing of the link did not further encroach on the rights of others (that is to say the claimant’s copyright) since a website with the unlawful content could very easily be found via an Internet search engine anyway. 31. In Crookes v. Newton (2011, SCC 47, [2011] 3.S.C.R. 269) the Supreme Court of Canada considered the issue of whether creating a hyperlink to defamatory material constituted publication of the defamatory statements. It held that a person could not defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material. It stated, in particular: “Hyperlinks are in essence references, which are fundamentally different from other acts of ‘publication’. Hyperlinks and references both communicate that something exists, but do not themselves communicate its content. ... A hyperlink, by itself should never be seen as ‘publication’ of the content to which it refers. ... Only when the person or organisation doing so presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by that person or organisation.”