European Court of Human Rights to Pirate Bay: No Safe Harbor Here

On March 13, in Neij and Kolmisoppi v. Sweden, the European Court of Human Rights (European Court) decisively rejected several challenges under the European Convention on Human Rights by two participants in the operations of The Pirate Bay (TPB), the much-publicized file-sharing service whose operators Swedish prosecutors have been pursuing for violations of the Swedish Copyright Act and the Swedish Penal Code.  The Swedish Court of Appeal that reviewed the criminal convictions of the two applicants, Fredrik Neij and Peter Sunde Kolmisoppi, described them, respectively, as "hav[ing] been engaged in the programming, systematisation and daily operations of TPB" and "hav[ing] contributed to the financing of TPB by collecting debts from two advertisers and . . . in closing an advertising agreement" as well as having "contributed to the development of TPB's systematic tracker function and database" and having "configured a load balancing service for TPB."  The applicants' sentences, as modified by the Court of Appeal, included 10 and 8 months imprisonment, respectively, as well as joint liability for damages in the amount of approximately

€5 million.

Because both applicants were convicted under the Copyright Act for complicity to commit crimes in violation of the Copyright Act, both of them argued to the European Court that under Article 10 of the Convention -- which grants to everyone the right to freedom of expression -- "their right to receive and impart information had been violated when they were convicted for other persons’ use of TPB." According to the European Court, the applicants asserted that Article 10 "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 response, the Court first noted that section 1 of Article 10 "guarantees the right to impart information and the right of the public to receive it" to "everyone," whether or not the aim is profit-making, and applies "not only to the content of the information but also to the means of transmission or reception."  But section 2 of Article 10 further states, in pertinent  part, that the exercise of freedom of expression "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 . . .crime, [and] for the protection of the . . . rights of others . . . ."

In its analysis, the Court first concluded that "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." The Court then briefly addressed the first two standards.  It held that (1) the convictions' interference with the applicants' right to free expression was "prescribed by law" because they "were only convicted in respect of material shared through TPB which was protected by copyright in accordance with the Copyright Act"; and (2) "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" because "the interference pursued the legitimate aim of protecting the plaintiffs’ copyright to the material in question."

With respect to the third element, whether the interference was "necessary in a democratic society,"
the Court first applied a requirement from its previous decisions that it "determine whether the interference complained of corresponded to a 'pressing social need'."  That analysis required the Court to examine "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 this case, the Court observed, it had "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."  With regard to the copyright-holders' interests, the Court explicitly recognized that Sweden "had to balance two competing interests which were both protected by the Convention," a situation in which " the State benefits from a wide margin of appreciation [i.e., discretion or deference]."  Moreover, the Court found that margin of appreciation to be "particularly wide" in view of "the nature of the information at hand, and the balancing interest mentioned above."

The Court further found that "[s]ince the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention, . . . 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 took into account the nature and severity of the penalties imposed in assessing the proportionality of interference with Article 10 freedom of expression, and concluded that the sentences "cannot be considered as disproportionate."  Finally, it found that with regard to all of the circumstances of the case, that the interference was “necessary in a democratic society” within the meaning of Article 10 § 2.

Accordingly, under the terms of Article 35 of the Convention, which sets forth the the admissibility criteria for applications to the Court, the Court unanimously declared that "the application must be rejected as manifestly ill-founded . . . ." (This latter statement merely refers to a specific criterion in Article 35 for admissibility, and should not necessarily be taken as a comment on the merits of the applicants' argument.)  Future legal avenues for Neij and Kolmisoppi presumably do not involve decamping to North Korea, as TPB recently suggested (in a hoax) it would for part of its filter operations.