Monday 2 February 2015

Active provider, criminal sanctions: the Bajatetodo case in Spain

The 1709 Blog is delighted to host this guest post from our friend Revital Cohen (Baker & McKenzie, Barcelona) on a recent Spanish ruling. This is what she writes:
Active provider, criminal sanctions: the Bajatetodo case

The Criminal Court of Appeal, Castellón, has recently upheld a first instance ruling [on which see the 1709 post here] which imposed a fine of 21,000 euro and a 18-month prison term on the webmaster of for providing clickable links to protected copyright works which included movies, music, software and games.

The defendant was held liable under Article 270 of the Spanish Criminal Code, by which it is a criminal offence to reproduce, plagiarise, distribute or publicly communicate an artistic work with lucrative intent and without the authorisation of the right holder.

The lucrative intent of the webmaster-appellant was held unquestionable by the Court of Appeal, who received a substantial financial benefit directly attributable to the infringing activity (eg, from advertising and assignment of users' accounts to third parties).

As for the issue of liability, the webmaster claimed he was eligible to benefit of the [very Spanish] linking safe harbour provision of Article 17 of the Spanish Act No 34/2002, which implemented the e-Commerce Directive 2000/31. Going beyond the three safe harbours explicitly listed in Articles 12, 13, and 14 of the e-Commerce Directive, the Spanish provision implements a shield from liability dedicated to linking providers who are not actually aware of the unlawful nature of the linked contents or who, after becoming aware of it, promptly act to remove the link.

The Court of Appeal rejected the webmaster's defence, observing that the website did not simply provide links to unlawful contents, but also engaged in the selection, ordering and indexation of the instruments to access and locate them. Thus the webmaster's activity went far beyond what is conceived as a mere [neutral and passive] intermediary role.

Citing the Court of Justice of the European Union decision in Svensson [commented on by the IPKat here], the Court added that the provision of clickable links to protected works constitutes an unauthorized act of communication to the public as they address an indeterminate and large number of new recipients, thus amounting to copyright infringement and to the webmaster's criminal liability.

The Castellón Criminal Court of Appeal decision confirms a significant change of direction in Spanish case law. Indeed, Spanish courts had for long time ruled that the act of arranging and providing information about unlawful files available in P2P networks merely facilitates the downloading of infringing contents [see, for instance, the Sharemula and the Pablo Soto cases, the latter discussed on the IPKat here]. Such activity had thus always been considered to be a mere intermediary role sheltered by the linking safe harbour provided by Article 17 of the Spanish Act No. 34/2002.

Although Spanish case law was based on the assumption that the owners of P2P websites could not be held criminally liable since they do not directly engage in acts of communication to the public, the Castellón Criminal Court of Appeal stressed that this is no longer the case, which appears to be in line with the recent reform of the Spanish Intellectual Property Act [on which see the earlier IPKat post here], which expressly provides that administrative proceedings can be initiated against those who facilitate links to copyrighted work provided that they are not limited to a mere neutral intermediary activity. 

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