1709 Blog: for all the copyright community

Monday, 19 January 2015

The Spanish hunt for websites providing hyperlinks

From our friend and Entresijos y Tesituras blogger Irene Palomino (@IriniPalomino) comes the following guest post on the current situation in Spain regarding internet-facilitated copyright infringement and linking sites:
The New Year brought the new Spanish IP regulation into force.

A significant and novel feature of the New Spanish legislation is its explicitly increased focus on copyright infringers in the online environment. The main target of the new legislation is the inclusion of websites that provide classified and ordered hyperlinks which give access to protected materials. This approach is entirely at odds with current Spanish jurisprudence – in particular the decision in Audiencia Nacional of Quedelibros v SGAE (decision here; discussed here, both in Spanish) which stated that it is against the law to treat these intermediaries as autonomous infringers without taking into account the status of the owner of the website who hosts the material.

Nevertheless, this new law suggests another version of things, regarding the operators of these websites as independent infringers. The legislature, far from restraining itself, considers not only websites hosting classified links to be infringers but also those which allow linking publications on their website. This means that all website owners must be extremely careful about what is going on in their forums and comments spots.

In order to enforce these new rules, the procedure for fining those potential infringers has been revised through a special governmental institution called La Comisión de la Propiedad Intelectual Sección Segunda (‘the Commission’, explained in Spanish here).

Reassuringly, in order to define what is considered an infringer, account is taken of the Spanish audience making use of those websites that provide suspicious hyperlinks and quantities of unauthorised protected work available via hyperlinks from those websites.

There is always a dark side and, in this case it deals with how the new procedure works.

In order to report an infraction, copyright holders must address a notification in the form of an email to the website in question, alleging a violation of his/her rights. Since an answer is not required in order to initiate proceeding, after three days we are entitled to begin the process. If an email address is not provided on the website, a simple petition addressed to the Commission will suffice and it will be announced in the Official State Gazette (Boletín Oficial del Estado).

As a first step, the Commission will notify the website about the alleged infraction. Within the timeframe of a maximum of 48 hours, two options arise: on is to delete allegedly infringing materials and the other is to prove one’s innocence.

Paradoxically, if materials are deleted, websites might be subject to a civil action, given that this response can be equated with an implicit acceptance that one has infringed copyright.

Where website owners do not delete hyperlinks, the Commission can make use of heavier weapons: after obtaining a judicial authorization, the Commission holds two options. The first is to ask the electronic payment services and advertisement services to cease any relationship with the websites, which results in economic pressure. The second is to ask the ISPs to trace users as well as website owners in order to bring blocking injunctions against them. It is imperative that these petitions be justified by an effectiveness report, balancing the proportionality of the measures inquired. This reasoning is in line with UPC Telekabel jurisprudence. Nevertheless, it is still unclear how users of this procedure can assert their rights and how the courts can control these injunctions, since the prior judicial authorisation required is exclusively for formal purposes. Finally, fines range from €150,001 to €600,000 and, where the domain is not from the EU, access to it from within Spain may be blocked for a maximum of one year.

As if this was not enough, the infringer may be subject to further civil, administrative and penal action.

Curiously, it is the first time in the EU that we encounter this sort of specification concerning hyperlinks where the prosecution of this questionable practice is established by a special authority. This is a good moment to look back to the Svensson and BestWater CJEU decisions and observe how the Spanish have done their homework in order to clarify unknown factors arising from these EU decisions.

Finally, the new ruling also introduces a new Article into the Civil Procedure Code where, in preliminary trial research, a private party may require the ISPs to provide users’ identification in order to bring an action to protect intellectual property rights. This is a bit scary if one considers that this possibility leaves the window open to jeopardize users’ right to privacy. As we can well remember in the recent decision of the CJEU in Digital Rights Ireland, the Court ruled that rights of users must not be violated unless there existed a major reason to do so, such as a serious crime. One might say that this new civil procedure amendment could be used as a subterfuge to avoid the criminal procedure’s more rigorous conditions.

We will soon see how those websites behave and if they are efficiently blocked. I am eager to see the influence of this new law in other regulations.
Further reading:
El Pais, "Spain’s new intellectual property legislation: the key points", here

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