Pirates' freedom of expression restricted by the European Court of Human Rights (ECHR)

Published onMarch 2013

The European Court of Human Rights recently declared inadmissible the complaint filed by two founding members of the website The Pirate Bay that their convictions for copyright infringement by Swedish courts interfered with their right to freedom of expression under Article 10 of the Convention (ECHR, 19 February 2013, Fredrik NEIJ and Peter SUNDE KOLMISOPPI against Sweden, Application No.40397/12).

These two people had been condemned by the Swedish courts to ten and eight-month prison sentences and were held jointly liable for damages of approximately EUR 5 million for their involvement in The Pirate Bay, one of the world’s largest file sharing services on the Internet, and for committing crimes in violation of the Copyright Act. The main argument was that the defendants had furthered illegal file-sharing and that none of them had taken any action to remove the copyright-protected torrent files, despite being requested to do so.

Before the European Court, the applicants argued that their convictions was in breach with their right to freedom of expression protected both in the Swedish constitution and under Article 10 of the European Convention of Human Rights, knowing that Article 10 applies not only to the content of the information but also to the means of transmission or reception.

The ECHR consequently examined whether the applicants’ convictions were “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and were “necessary in a democratic society” to attain such aim or aims and considered that all conditions were met in the present case, rather logically when it is recalled that intellectual property also benefits from the protection afforded by Article 1 of Protocol No.1 to the Convention. The Court stressed that Sweden had a wide margin of appreciation in balancing the interests at stake and that the “obligation to protect the plaintiffs’ [intellectual] property rights in accordance with the Copyright Act and the Convention […] were weighty reasons for the restriction of the applicants’ freedom of expression”.

The Court also considered that the prison sentence and award of damages could not be regarded as disproportionate, especially noticing that the applicants “had been indifferent to the fact that copyright-protected works had been the subject of file-sharing activities via The Pirate Bay”.

That being so, the applicants and other authors of The Pirate Bay might be relieved to see that copyright can be effectively protected from time to time because they seem to be planning to bring a copyright infringement lawsuit against a Finnish anti-piracy association for copying their website and logo…

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