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Founders of file-sharing website lose free speech bid at European Court

On the week of 11 March 2013, the European Court of Human Rights (European Court) rejected the complaint of the 'The Pirate Bay' ('TPB') co-founders against their criminal conviction for facilitating copyright infringement. ARTICLE 19 is concerned at the Court's apparent reluctance to become the next battleground for advancing the right to freedom of expression against copyright claims.

Fedrik Neij and Peter Kolmisoppi are the co-founders of the TPB file-sharing website. In 2009, they were convicted of complicity to commit crimes in violation of the Swedish Copyright Act. They were eventually sentenced by the Swedish Court of Appeal to ten- and eight-month imprisonment respectively and were held jointly liable for approximately 5 million EUR in damages. The Swedish Supreme Court refused leave to appeal in February 2012.

In their complaint to Strasbourg, Neij and Kolmisoppi argued that their criminal conviction breached their right to freedom of expression. They alleged that they could not be held responsible for how other people made use of TPB, which they originally set up simply to facilitate the exchange of files on the Internet.

Although the Court recognised that the applicants' actions benefited from the protection of the freedom expression right under Article 10 of the European Convention, it went on to find that the criminal sanctions for commercial copyright infringement were proportionate.

Key to the Court's reasoning was the fact the applicants ran a commercial enterprise and did not take any action to remove the files in question from the website, despite being urged to do so.

The European Court declared the application inadmissible, closing the door to any further challenges by the applicants.

Although the decision was to be expected given the generally conservative approach of many courts in file-sharing cases, ARTICLE 19 nonetheless finds the decision disappointing for the following reasons:

* The Court took the view that the material distributed on the site deserved less protection from free speech guarantees since it was not political in nature. While this is in line with the established approach of the Court, it overlooks that the right to freedom of expression is not only concerned with political speech. In particular, ARTICLE 19 believes that the Court should have given more weight to the role played by file-sharing services in fostering access to culture.

*ARTICLE 19 is also disappointed that the Court gave greater discretion to impose restrictions in copyright cases than in relation to other forms or areas of artistic and literary expression.

*ARTICLE 19 is also concerned that the Court found against the applicants on the basis that they did not take any action to take down the files in question despite being urged to do so. This gives rise to the danger that intermediaries will be required to act as “private censors” of content posted on the Internet by others. Among other things, the Court ignored the 2011 Joint Declaration on Freedom of Expression and the Internet, in which four special rapporteurs recommended that no one should be liable for content produced by others when providing search facilities and access to information. In ARTICLE 19's view, this principle of intermediary immunity from liability for third-party content is crucial if the Internet is to remain a free platform for the exchange of information and ideas.

ARTICLE 19 further notes that this case concerned commercial copyright infringement, a very important factor in the Court's decision. It therefore remains to be seen whether the Court will take a different approach in cases of non-commercial copyright infringement.

The inadmissibility decision of the European Court of Human Rights in Fredrik Neij and Peter Sunde Kolmisoppi vs Sweden is available here.

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