The European Court of Human Rights (ECtHR) recently gave a decision in the case of Neij and Sunde Kolmisoppi v. Sweden. This is the second case in a short time that deals with copyright and freedom of expression. Whereas the case of Ashby Donald and others v. France was decided on the merits, this case was considered inadmissible and thrown out by the ECtHR. Nonetheless, the Court’s decision did provide an interesting read.
First, the facts of the case. Fredrik Neij and Peter Sunde Kolmisoppi are the co-founders of the famous torrent-platform that is The Pirate Bay (for a recent documentary about all the founders of The Pirate Bay, see this YouTube-video). In Sweden, they were convicted for furthering copyright infringement. They filed a complaint to the ECtHR and argued that their right to freedom of expression was breached. The Svea Court of Appeal had confirmed the District Court’s decision that “by making available its website with well-developed search functions, simple uploading and storing possibilities and through its tracker system, TPB [The Pirate Bay] had facilitated and furthered the crimes in violation of the Copyright Act and thereby, objectively been guilty of complicity to commit crimes in violation of the Act.” However, whereas the District Court had held that they should be held collectively responsible for these crimes, the Court of Appeals held that Neij and Sunde Kolmisoppi’s criminal liablity should be assessed indivually.
Neij was held responsible for “the programming, systematisation and daily operations of TPB.” Sunde Kolmisoppi “contributed to the financing of TPB by collecting debts from two advertisers and, moreover, to have contributed in closing an advertising agreement. He had further contributed to the development of TPB’s systematic tracker function and database. Lastly, he had configured a load balancing service for TPB.” The Court of Appeals held that they were not shielded from criminal liability on the basis of the ‘Electronic Commerce Act’, in which the liability exemptions of the European E-Commerce Directive are implemented. They had committed the offences intentionally and the exemptions from criminal liability could not apply under such circumstances.
Regarding the plaintiff’s claim for damages, the Court of Appeals noted the following:
“[…] TPB had created the possibility to upload and store torrent files, a database and a tracker-function. Thus, it had not merely offered transfer of data or caching, which was a precondition for freedom from indemnity liability under the Act. The Court of Appeal noted that the applicants had not taken any precautionary measures, and torrent files which referred to copyright-protected material had not been removed despite warnings and requests that they do so.”
When the Swedish Supreme Court refused leave to appeal, the Pirate Bay co-founders complained to the European Court of Human Rights. They argued that that their right to receive and impart information (Article 10 of the Convention) had been violated by the conviction.
Neij and Sunde Kolmisoppi:
“Article 10 of the Convention enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service. In this connection, they referred to international frameworks, expressing a far-reaching right to receive and provide information between Internet users.”
The ECtHR’s decision
When outlining the circumstances of the case, the ECtHR notes that “the service used the so-called BitTorrent protocol. TPB made it possible for users to come into contact with each other through torrent files (which in practice function as Internet links). The users could then, outside TPB’s computers, exchange digital material through file- sharing.” Technically speaking, the claim that torrent-files function as internet links is hard to maintain. Torrent-files only contain meta-data about downloadable files. They point to a ‘tracker’ that keeps a global registry of all the downloaders. When a user queries the tracker, it responds by providing a list of peers, with whom the user can establish a direct connection to download the files. The Pirate Bay allows users to upload torrent-files and operates a tracker so they are involved in a large part of the process, from finding a torrent-file to providing a list of peers from which parts of files can be downloaded. This of course does not support the statement that torrent-files function as links. They are, at the most, indirect links.
The ECtHR holds that The Pirate Bay co-founders’ conduct falls under Article 10(1) of the Convention, and that Sweden, by convicting them, had interfered with their right to freedom of expression. The Court reiterates its decisions in the Times Newspaper-cases and the recent Ashy Donald-case, and underlined that the Internet, “in the light of its accessibility and its capacity to store and communicate vast amounts of information, […] plays an important role in enhancing the public’s access to news and facilitating the sharing and dissemination of information generally”.
On the basis of Article 10(2) of the Convention, the exercise of the freedom of expression may be subject to formalities, conditions, restrictions or penalties, only if they are ‘prescribed by law’, pursue one or more of the legitimate aims referred to in Article 10(2) of the Convention and are ‘necessary in a democratic society’. The ECtHR is brief but clear in its reasoning that the interference was prescribed by law as the convictions were based on the Copyright Act and the Penal Code. The Court is equally brief in explaining that there was a legitimate aim. It held that the conviction pursued the legitimate aim of ‘protection of the rights of others’ and ‘prevention of crime’.
On whether the interference was necessary in a democratic society, the ECtHR’s assessment boiles down to a balance of two competing rights enshrined in the Convention and its Protocols: the right to freedom of expression (Article 10 of the Convention), including the right to receive and impart information, versus the right to protection of property (Article 1 First Protocol). It underlines that when two competing interests that are both protected by the Convention, Sweden has a wide margin of appreciation. This means that Sweden itself is given leeway in balancing the two competing interests. Furthermore, because the materials that are shared on The Pirate Bay are not given the same amount of protection that is granted to political expression and debate, the margin of appreciation is even wider. The ECtHR points out that the Swedish authorities were obligated to protect copyrights in accordance with the Swedish Copyright Act and the Convention, and that the courts advanced relevant and sufficient reasons for the conviction.
“In conclusion, 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 finds that the interference was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.”
Although the Court is extensive in laying down the facts and its reasoning, it nevertheless comes to the conclusion that the application of The Pirate Bay co-founders is ‘manifestly ill-founded‘. This means that their application is declared inadmissible. Neij and Sunde Kolmisoppi have not yet lost all hope. They told TorrentFreak that “not all doors are closed yet”. I wonder what doors I am missing here.