Two of the founders of the Pirate Bay have failed in what I presume is their final appeal against their convictions for copyright infringement in the Swedish criminal courts, with the European Court of Human Rights finding that Sweden had rightly convicted the pair.
Fredrik Neij and Peter Sunde were sentenced to one year imprisonment by the Stockholm District Court in April 2009 for crimes against the Copyright Act. Together with two other defendants they were also found liable for damages of approximately K30 million (US$4.3 million). Their prison sentences were reduced in November 2010 by the Svea Court of Appeal, but the joint damages were increased by that court to K46 million (US6.8 million). The Swedish Supreme Court denied them an appeal hearing in February 2012.
Neij and Sunde complained that their convictions infringed their freedom of expression under Article 10 of the European Convention in Human Rights and that as their website facilitated the exchange of information, they could not be held liable for their user’s infringing acts.
The ECHR had to balance Article 10 - the freedom of expression (even if such included material that infringed copyright) with the legitimate interests of copyright owners. The Court held that sharing, or allowing others to share, files of this kind on the Internet, even copyright-protected material and for profit-making purposes, was covered by the right to 'receive and impart information' under Article 10. However, the Court considered that the
domestic courts had "rightly balanced the competing interests at stake and that the necessity to protect copyright rightly prevailed over the rights of the applicants to receive and impart information when the applicants were convicted": Since the shared material was protected under the Swedish Copyright
Act, the ECHR held that the interference with the freedom of expression by the Swedish authorities had been prescribed by law.
In particular the court looked
at the nature of the information shared and said "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". In addition the Court held
that considering that Neij and Sunde "had not removed the copyright-protected material from their website despite having been requested to do so, the prison sentence and award of damages could not be regarded as disproportionate". And that "Therefore, the interference with the right to freedom of expression had been "necessary in a democratic society”.
The seven judge court unanimously rejected the application as "manifestly ill-founded".
Neij continues to evade Swedish justice, living in Laos. Sunde lives in Berlin. The third defendant, Gottfrid Warg was deported from Cambodia on visa irregularities and is currently in custody in Sweden. The fourth defendant, millionaire Carl Lundstrom, has made a relatively small ($35,000) payment
towards the damages owed, and served his four month sentence under house arrest in Sweden.
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