14 March 2013

Sunk! The Court of Human Rights rejects the Pirate Bay's Complaint

Fredrik Neij and Peter Sunde Kolmisoppi founded one of the world's largest file sharing sites known as The Pirate Bay. They were prosecuted for offences under the Swedish copyright act (Upphovsrättslagen, 1960:729) and in the same process sued by various record companies and other copyright owners for copyright infringement in the Stockholm district court (Tingsrätt). After a hearing that lasted from the 16 Feb until 3 March 2009 they were found guilty of the charges and sentenced to a year's imprisonment on 17 April 2009. They were also ordered to pay damages of SEK30 million to the copyright owners.

They appealed to the Swedish court of appeal ((Svea hovrätt) which upheld their convictions but reduced their sentences and increased the damages award on 26 Nov 2010. They applied for permission to appeal to the Swedish supreme court (Högsta domstolen) but that court rejected their application on 1 Feb 2012.

On 20 June 2012 Mr. Neij and Mr. Kolmisoppi complained to the European Court of Rights that the judgment of the Swedish courts violated their right to freedom of expression under art 10 of the European Convention on Human Rights. The case came on before Mark Villiger, President, and Judges Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom and Aleš Pejchal on 19 Feb 2013.   In Neij and Another v Sweden 28 Feb 2013 the Court unanimously declared the application inadmissible.

In  reaching their decision the judges considered:
  1. Whether there had been an interference with the applicants’ freedom of expression;
  2. Whether the interference was prescribed by law;
  3. Whether there was a legitimate aim; and
  4. Whether the interference was necessary in a democratic society.
They considered those questions because art 10 (1), which guarantees freedom of expression including freedom "to receive and impart information and ideas without interference by public authority and regardless of frontiers", is qualified by art 10 (2), which subjects the exercise of these freedoms "to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ..... for the protection of the ........ rights of others."

As to the first question, the Court  decided that the a file sharing website was entitled to protection under art 10 (1) of the Convention and, 
"consequently, the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims."
However, there was no doubt that such interference was prescribed by law since the applicants' convictions were in accordance with Swedish copyright and criminal law.   The court was further satisfied that the interference pursued the legitimate aim of protecting copyright to the material in question and that the convictions and damages awarded pursued the legitimate aim of “protection of the rights of others” and “prevention of crime” within the meaning of article 10 (2).   Finally, "having regard to all the circumstances of the present case, in particular the nature of the information contained in the shared material and the weighty reasons for the interference with the applicants’ freedom of expression", the Court found that the interference was “necessary in a democratic society” within the meaning of art 10 (2) of the Convention.

The interesting part of the judgment was the Court's consideration of whether the interference was necessary in a democratic society.   Relying on the Court's decision in The Observer and The Guardian v United Kingdom [1991] ECHR 13585/88, [1991] ECHR 49, (1992) 14 EHRR 153, 14 EHRR 153 the judges reiterated that the test of “necessity in a democratic society” required it to determine whether the interference complained of corresponded to a “pressing social need”.   That test cannot be applied in absolute terms:
"On the contrary, the Court must take into account various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case. In the present case, the Court is called upon to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders."
As to the weight afforded to the interest of protecting the copyright‑holders, the Court stressed that intellectual property was protected by art 1 of Protocol No. 1 to the Convention (Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 72, ECHR 2007‑I) [2007] ECHR 40, [2007] ETMR 24, 23 BHRC 307, (2007) 45 EHRR 36). The Court reiterated the principle that genuine, effective exercise of the rights protected by that provision does not depend merely on the State’s duty not to interfere, but may require positive measures of protection (Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII . [2004] ECHR 657, 18 BHRC 145, (2005) 41 EHRR 20, [2004] Inquest LR 108).   The judges concluded that the respondent state had to balance two competing interests which were both protected by the Convention in which the state benefits from a wide margin of appreciation (see Ashby Donald and Others v France  [2013] ECHR 28; and Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet). 

Noting that the Swedish authorities were obliged not only by their copyright statute but also by the Convention to protect the copyright owners' rights, the Court found that there were "weighty reasons for the restriction of the applicants’ freedom of expression" and that the Swedish courts advanced "relevant and sufficient reasons to consider that the applicants’ activities within the commercially run Pirate Bay website amounted to criminal conduct requiring appropriate punishment. In that respect, the Court reiterated that the applicants were only convicted for materials which were copyright-protected.

The Court reiterated that the nature and severity of the penalties imposed were factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed by art 10 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI, [2004] ECHR 692, (2005) 41 EHRR 14 and Skałka v. Poland, no. 43425/98, § 41, 27 May 2003 [2003] ECHR 256 ). In the present case, the Court considered that the prison sentence and the award of damages could not be regarded as disproportionate. In reaching that conclusion, the Court had regard to the fact that the Swedish courts had found that the applicants had not taken any action to remove the torrent files in question, despite having been urged to do so. Instead they had been indifferent to the fact that copyright-protected works had been the subject of file-sharing activities via The Pirate Bay.

The balancing exercise applied by the ECHR in Neji is not very different from that of the Court of Justice of the European Union in Scarlet [2011] EUECJ C-70/10, [2012] ECDR 4 which I discussed in "Injunctions against ISPs Part II: the CJEU's Judgment in Scarlet" 11 Dec 2011 or indeed Mr. Justice Arnold's in Dramatico and EMI which I blogged in "Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others" 21 Feb 2012 and "Injunctions against ISPs Part V: EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others" 5 March 2012.

This is an important decision but it is not one that the entertainments industry is likely to welcome with unqualified rapture.   For a start, the Court did find that file sharers were entitled to freedom of expression under art 10 which for the moment is incorporated into English law by the Human Rights Act 1998,. That freedom can be curtailed under art 10 (2) only in so far as may be necessary in a democratic society for the protection of the rights of others.  Secondly, the Court restated that the test of “necessity in a democratic society” required any interference with freedom of expression to be justified by a “pressing social need” and that the test can never be applied in absolute terms:   

If anyone wants to discuss this post or indeed  freedom of expression or copyright generally he or she should call me on on +44 (0)20 7404 5252 or send me a message through my contact form. . I can also be followed on Facebook, Linkedin, twitter and Xing.

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