On Wednesday, the European Court of Human Rights in a unanimous ruling rejected an appeal to quash the convictions of two The Pirate Bay(TPB) founders Fredrik Neij and Peter Sunde. The two had filed an application at this Court in June 2012, alleging that their freedom of expression had been violated when Swedish Courts in 2009 had held them liable for contributory copyright infringement. The TPB is a file-sharing website using “torrents”, which are files enabling users to distribute and download movies, music and other data. The founders argued that any liability for copyright fell on the users, that they had merely facilitated exchange of torrent files between users and claimed that this right to communicate information was protected by Article 10 of the European Convention of Human Rights. The Court stated that intellectual property benefits from the protection afforded by Article 1 of the Convention and thus here, Swedish Courts had to balance two competing interests which were both protected by the Convention. The Court expressed the need 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.” The applicants’ argument was firmly rejected by the Court citing a need to balance the right to freedom of expression with other interests. Ultimately, protection rights accorded under Copyright Act and the Convention prevailed over the applicants’ right to freedom of expression. The Court held that TPB was run as a profit-making organisation, therefore it could not be afforded a protection level given to political expression and debate.
Further, the Court said that TPB had taken no steps to remove the torrent files in question, despite having been urged to do so. Thus, interference with the right to freedom of expression had been “necessary in a democratic society. In such a scenario, the Court held that the sentence and fine awarded by Swedish Courts cannot be regarded as disproportionate and upheld them.
You may read the judgment here.
Revisiting the The Pirate Bay Trial:
In a widely publicised trial in 2009, four founders of The Pirate Bay were sentenced to imprisonment ranging from 4 months to a year, and fined 3.5 million USD by a Swedish District Court for contributory copyright infringement under the Copyright Act. The Svea Court of Appeals had reduced the sentences but increased damages to 6.5 million USD. The violations were triggered by blatantly running a file sharing system- which facilitated the exchange of small information files called “torrents” which enabled users on the system to distribute and download movies, music and other files. The Supreme Court of Sweden denied them an appeal in 2012.
However, there is an interesting aspect in which “the European Court of Human Rights has clarified that a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention. ” (Copyright vs Freedom of Expression Judgment, in http://echrblog.blogspot.com.br/2013/01/copyright-vs-freedom-of-expression.html)
According to this view, ” The deferential approach by the European Court […] due to the fact that it ‘only’ concerned an interference in the context of “commercial speech” does not exclude at all that in other cases the European Court may scrutinize in a more strict way the balancing of a conflict between the right of freedom of expression and copyright. That will especially be the case in matters that concern prior restraint, such as the blocking of internet sites, artistic freedom of expression, political speech, use of official documents, reproduction and public communication of works for educational or scientific purposes or NGOs participating in debate on matters of public concern such as health and environmental issues. Similarly, in cases where journalists and media are exercising their public watchdog function in a democracy, in cases of parody, caricatures or other forms of transformative use and when sanctions risk to have a chilling effect on the freedom of expression and information in a democracy. In such cases interferences with the right of freedom of expression and information, based on copyright law, will indeed need to undergo a more careful balancing test between Article 10 and Article 1 of the First Protocol.” (Copyright vs Freedom of Expression Judgment, in http://echrblog.blogspot.com.br/2013/01/copyright-vs-freedom-of-expression.html)