Corte europea dei diritti dell’uomo
(Quinta Sezione)
19 febbraio 2013
CASE of FREDRIK NEIJ and PETER SUNDE KOLMISOPPI
against
(Application n. 40397/12)
JUDGMENT
STRASBOURG
The European Court of Human Rights (Fifth Section), sitting on 19 February 2013 as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan
M. Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Helena Jäderblom,
Aleš
Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 June 2012,
Having deliberated, decides as follows:
THE FACTS
The first
applicant, Mr Fredrik Neij, is a Swedish national and
the second applicant, Mr Peter Sunde Kolmisoppi, is a Finnish national. They were both born in
1978. The first applicant was represented before the Court by Mr J. Nilsson, a
lawyer practising in Gothenburg, while the second applicant was represented by
Mr P. Althin, a lawyer practising in
A. The
circumstances of the case
The facts of
the case, as submitted by the applicants, may be summarised as follows.
During 2005
and 2006 the applicants were involved in different aspects in one of the world’s
largest file sharing services on the Internet, the website “The Pirate Bay” (TPB). 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.
In January
2008, the applicants and two other persons were charged, inter alia, with complicity
to commit crimes in violation of the Copyright Act (Upphovsrättslagen, 1960:729).
According to the prosecutor, the defendants and another person had been
responsible for the operation of TPB and, thus, had furthered other persons’
infringement of copyright concerning music, films and computer games. The
prosecutor submitted that the defendants had provided others with the
opportunity to upload torrent files to TPB. He further claimed that they had
provided others with a database linked to a catalogue of torrent files,
provided the opportunity for others to search for and download torrent files
and also provided the means to allow individuals wishing to share files to
contact each other through TPB’s tracker function.
Several companies in the entertainment business brought private claims
within the criminal proceedings against the defendants and demanded
compensation for illegal use of copyright-protected music, films and computer
games. The claims amounted to several million Euros (EUR).
Before the
District Court (tingsrätten)
in
The second
applicant made the same defence as the first applicant and added, inter alia, that he had not
been responsible for the measures involved in the operation of TPB.
As to the plaintiffs’ claim for damages, both applicants referred to
their defence and added, inter alia,
that the plaintiffs had not suffered any damage since their sales had not
fallen as a result of the alleged infringements of the Copyright Act. Moreover,
there was no proximate cause between the alleged damages and the actions taken
by the defendants. In any event, the applicants argued that they could only be
held liable for damages for infringements committed in
On 17 April
2009 the District Court convicted the applicants of complicity to commit crimes
in violation of the Copyright Act and sentenced each of them to one year’s
imprisonment. The applicants were also held jointly liable for damages of
approximately EUR 3,3 million together with the other
defendants, also convicted for their involvement in TPB. The District Court
considered that the users of TPB had committed crimes in violation of the
Copyright Act and that the crimes had been committed in
It further rejected the defendants’ argument that in any event they should
be acquitted with reference to the Electronic Commerce Act. In reaching this
conclusion the court considered, inter
alia, that TPB had provided the opportunity for others to share
copyright-protected material. In the court’s view, it must have been obvious to
the defendants that TPB contained torrent files which related to
copyright-protected material. However, none of them had taken any action to
remove the torrent files in question, despite being requested to do so.
Moreover, even assuming that the defendants had not been aware of precisely
those works covered by the indictment they had, according to the court, at
least been indifferent to the fact that copyright‑protected works had
been the subject of file-sharing activities via TPB. For these reasons, and
considering that it was a matter of intentional offences, the actions of the
defendants did not enjoy freedom from prosecution under the Electronic Commerce
Act.
The
applicants appealed to Svea Court of Appeal (Svea hovrätt),
maintaining their claims. Several plaintiffs also appealed, demanding full
compensation in accordance with their claims.
On 26
November 2010 the Court of Appeal reduced the first applicant’s prison sentence
to ten months and the second applicant’s sentence to eight months but increased
their joint liability for damages to approximately EUR 5 million. The
Court of Appeal agreed with the lower court’s conclusion that the prosecutor
had proved that crimes in violation of the Copyright Act had been committed in
Sweden and, thus, that Swedish law was applicable. It also agreed with the
District Court’s conclusion that TPB had furthered illegal file-sharing in such
a way that the persons responsible for it became criminally liable. However,
the Court of Appeal rejected the lower court’s conclusion
that the defendants should be held collectively responsible for the actions
committed. Instead, the Court of Appeal considered it necessary to
assess the criminal liability of each person charged individually. Thus, each
defendant was held liable for his own actions only. The first applicant was
found to have been engaged in the programming, systematisation and daily
operations of TPB. The second applicant was found to have 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.
As regards
the defendants’ argument that they should be granted freedom from criminal
liability in accordance with the Electronic Commerce Act, the Court of Appeal noted that
the defendants had committed the offences intentionally and that the provisions
on freedom from criminal liability in the Act were not applicable under such
circumstances. As for compensation for the plaintiffs, the court noted that 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. According to the Court of Appeal, the
defendants could not be granted freedom from criminal liability with reference
to social adequacy.
Upon further
appeal by the applicants, the Supreme Court (Högsta domstolen) refused leave to appeal on 1
February 2012.
B. Relevant
domestic law
1.
Constitutional guarantees
Freedom of expression and freedom of information are protected in the
Swedish constitution, via the Instrument of Government (Regeringsformen).
Chapter 2, Section 1, provides in relevant parts:
“Every citizen shall
be guaranteed the following rights and freedoms in his relations with the
public institutions:
1. freedom
of expression: that is, the freedom to communicate information and express
thoughts, opinions and sentiments, whether orally, pictorially, in writing, or
in any other way;
2. freedom
of information: that is, the freedom to procure and receive information and
otherwise acquaint oneself with the utterances of others.”
According to
Chapter 2, section 20, the rights of freedom of expression and information may
be limited in law. However, such limitations must meet the requirements laid
down in Chapter 2, sections 21 and 23.
Section 21
provides that limitations may be imposed only to satisfy the purposes
acceptable in a democratic society. The limitation must never go beyond what is
necessary with regard to the purpose which occasioned it, nor may it be carried
so far as to constitute a threat to the free formation of opinion as one of the
fundaments of democracy. No limitation may be imposed solely on grounds of a
political, religious, cultural or other such opinion.
In
accordance with the first paragraph of section 23, freedom of
expression and freedom of information may be limited with regard to the
security of the Realm, the national supply of goods, public order and public
safety, the good repute of the individual, the sanctity of private life, and
the prevention and prosecution of crime. Freedom of expression may also be
limited in business activities. Freedom of expression and freedom of
information may otherwise be limited only where particularly important grounds
so warrant.
The
second paragraph of section 23 stipulates that, in judging what limitations may be introduced
by virtue of the first paragraph, particular regard must be had to the
importance of the widest possible freedom of expression and freedom of
information in political, religious, professional, scientific and cultural
matters.
2. The
Copyright Act
The
protection of authors and right-holders is laid down in the Copyright Act,
which, in relevant parts, reads as follows:
Chapter 1 Subject Matter and Scope
Section 1
Anyone who has
created a literary or artistic work shall have copyright in that work,
regardless of whether it is
....
Section 2
Subject to the
limitations prescribed hereinafter, copyright shall include the exclusive right
to exploit the work by making copies of it and by making it available to the
public, be it in the original or an altered manner, in translation or
adaptation, in another literary or artistic form, or in another technical
manner.
As the making of
copies shall be considered any direct or indirect, temporary or permanent
preparation of copies of the work, regardless of the form or through which
method this is carried out and regardless of whether it concerns the work in
whole or in part.
The work is being
made available to the public in the following cases
1. When the work is
being communicated to the public. This is deemed to include any making
available of the work to the public by wire or by wireless means that occurs
from a place other than that where the public may enjoy the work. Communication
to the public includes also acts of communication that occur in such a way that
members of the public may access the work from a place and at a time
individually chosen by them.
....
As acts of
communication to the public and of public performance shall be deemed also acts
of communication and performance that, in the framework of commercial
activities, occur to or for a comparatively large closed group of persons.
Chapter 5 Certain Rights Neighbouring to Copyright
Section 46
Subject to the
limitations prescribed in this Act, a producer of recordings of sounds or of
moving images has an exclusive right to exploit his recording by
1. making
copies of the recording, and
2. making
the recording available to the public.
...
The provisions of
Section 2, second - fourth paragraphs shall apply to recordings referred to in
this Article.
Chapter 7 on Penal and Civil Liability
Section 53
Anyone who, in
relation to a literary or artistic work, commits an act which infringes the
copyright enjoyed in the work under the provisions of Chapters 1 and 2 or which
violates directions given under Section 41, second paragraph, or Section 50,
shall, where the act is committed wilfully or with gross negligence, be
punished by fines or imprisonment for not more than two years.
Anyone who for his
private use copies a computer programme which is published or of which a copy
has been transferred with the authorisation of the author shall not be subject
to criminal liability, if the master copy for the copying is not used in
commercial or public activities and he or she does not use the copies produced
of the computer programme for any purposes other than his private use. Anyone
who for his private use has made a copy in digital form of a compilation in
digital form which has been made public shall, under the same conditions, not
be subject to criminal liability for the act.
The provisions of the
first paragraph also apply if a person imports copies of a work into
...
Section 57
The provisions of
Articles 53 - 56 shall apply also to rights protected by the provisions in
Chapter 5.
3. The Penal
Code
Chapter 23,
section 4, of the Penal Code (Brottsbalken, 1962:700) stipulates that punishment provided
for in the Penal Code for criminal acts shall be imposed not only on the person
who committed the act but also on anyone who furthered it by advice or deed.
The same shall apply to any other act punishable with imprisonment under
another law or statutory instrument. Moreover, a person who is not regarded as
the perpetrator shall, if he incited another to commit the act, be sentenced
for instigation of the crime and otherwise for aiding the crime. Each
accomplice shall be judged according to the intent or the negligence attributable
to him or her.
C. Relevant
Council of
In its recommendation CM/Rec(2007)16 to
member States on measures to promote the public service value of the Internet,
the Committee of Ministers noted that the Internet could, on
the one hand, significantly enhance the exercise of certain human rights and
fundamental freedoms while, on the other, it could adversely affect these and
other such rights. The member States were recommended to elaborate a clear
legal framework delineating the boundaries of the roles and responsibilities of
all key stakeholders in the field of new information and communication
technologies.
COMPLAINT
The
applicants complained under Article 10 of the Convention that their right to
receive and impart information had been violated when they were convicted for
other persons’ use of TPB. According to the applicants, 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 LAW
The
applicants complained that their convictions interfered with their right to
freedom of expression under Article 10 of the Convention, which provides:
“1. Everyone has the
right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of
these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests
of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.”
A. Whether
there was an interference with the applicants’ freedom of expression
The Court
notes from the outset that the applicants were convicted for their involvement
in the running of a website which made it possible for users to share digital
material such as movies, music and computer games, which were copyright-protected.
The Court
has consistently emphasised that Article 10 guarantees the right to impart
information and the right of the public to receive it (see, amongst other
authorities, Observer and Guardian v. the
Moreover,
Article 10 applies not only to the content of the information but also to the
means of transmission or reception since any restriction imposed on the means
necessarily interferes with the right to receive and impart information (see,
for example, Öztürk v. Turkey [GC], no.
22479/93, § 49, ECHR 1999-VI).
Furthermore,
Article 10 of the Convention guarantees freedom of expression to “everyone”. No
distinction is made in it according to whether the aim pursued is profit-making
or not (see, mutatis mutandis, Autronic AG v. Switzerland, judgment of 22 May
1990, Series A no. 178, p. 23, 47).
In the
present case, the applicants put in place the means for others to impart and
receive information within the meaning of Article 10 of the Convention. The
Court considers that the actions taken by the applicants are afforded
protection under Article 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.
B. Whether the
interference was prescribed by law
The
applicants’ convictions were based on the Copyright Act and the Penal Code. The
Court observes that the applicants were only convicted in respect of material
shared through TPB which was protected by copyright in accordance with the
Copyright Act. It follows that the interference was “prescribed by law”.
C. Whether
there was a legitimate aim
The Court is
further satisfied that the interference pursued the legitimate aim of
protecting the plaintiffs’ copyright to the material in question. Thus, 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.
D. Whether the
interference was necessary in a democratic society
The Court
reiterates that the test of “necessity in a democratic society” requires it to
determine whether the interference complained of corresponded to a “pressing
social need” (Observer and Guardian, cited above, § 59).
The test of
whether an interference was necessary in a democratic
society 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 would stress that intellectual property benefits from the protection
afforded by Article 1 of Protocol No. 1 to the Convention (see, for example, Anheuser-Busch Inc. v. Portugal [GC],
no. 73049/01, § 72, ECHR 2007‑I). Moreover, it reiterates 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 (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, § 134,
ECHR 2004‑XII). Thus, the respondent State had to balance two competing
interests which were both protected by the Convention. In such a case, the
State benefits from a wide margin of appreciation (Ashby Donald and Others, cited above, § 40; compare also to the Committee of Minister’s recommendation,
referred to above).
In this
connection, the Court would also underline that the width of the margin of
appreciation afforded to States varies depending on a number of factors, among
which the type of information at issue is of particular importance. In the
present case, although protected by Article 10, the safeguards afforded to the
distributed material in respect of which the applicants were convicted cannot
reach the same level as that afforded to political expression and debate. It follows that the nature of the information at hand,
and the balancing interest mentioned
above, both are such as to afford the State a wide margin of appreciation
which, when accumulated as in the present case, makes the margin of
appreciation particularly wide (Ashby
Donald and Others, cited above, §
41).
Since
the Swedish authorities were under an obligation to protect the plaintiffs’
property rights in accordance with the Copyright Act and the Convention, the
Court finds that there were weighty reasons for the restriction of the
applicants’ freedom of expression. Moreover, the Swedish courts advanced
relevant and sufficient reasons to consider that the applicants’ activities
within the commercially run TPB amounted to criminal conduct requiring
appropriate punishment. In this respect, the Court reiterates that the
applicants were only convicted for materials which were copyright-protected.
Finally, the
Court reiterates that the nature and severity of the penalties imposed are
factors to be taken into account when assessing the proportionality of
interference with the freedom of expression guaranteed by Article 10 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI, and Skałka v. Poland, no. 43425/98, § 41, 27 May
2003). In the present case, the Court considers that the prison sentence and
award of damages cannot be regarded as disproportionate. In reaching this
conclusion, the Court has regard to the fact that the domestic courts 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 TPB.
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.
It follows
that the application must be rejected as manifestly ill-founded, in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
For
these reasons, the Court unanimously
Declares the application inadmissible.
Claudia
Westerdiek Mark
Villiger
Registrar President