European Court of Human Rights decides the Pirate Bay case

Following last year's refusal of the Swedish Supreme Court to hear the Pirate Bay's final appeal, in May 2012 the counsel for one of the founders of the infamous bittorrent tracker (Fredrik Neij) announced his client's intention to bring the Pirate Bay case before the European Court of Human Rights (ECHR), claiming that his client's freedom to receive and impart information – pursuant to Article 10 of the European Convention of Human Rights – had been violated, since the Pirate Bay's services, including the transfer of non-proprietary information among users through an automated online process, were protected under this provision. 

Today the ECHR released its final decision in Neij and Sunde Kolmisoppi v Sweden, in which it unanimously held that Pirate bay co-founders' criminal conviction for assisting copyright infringement on the internet was justified. 

As explained in the press release,

"The Court reiterated that Article 10 guaranteed the right for everyone to receive and disseminate information on the Internet. Although the aim pursued by Mr Neij and Mr Sunde  Kolmisoppi [fellow Pirate Bay co-founder] was profit-making, their involvement in a website facilitating the exchange of copyright-protected material was covered by the right under Article 10 to “receive and impart information”. As a result, their conviction had interfered with their right to freedom of expression. 

However, since the shared material in respect of which Mr Neij and Mr Sunde Kolmisoppi had been convicted was protected under the Copyright Act, the Court held that the interference of the Swedish authorities had been prescribed by law. It also considered that the conviction of Mr Neij and Mr Sunde Kolmisoppi had pursued the legitimate aim of protecting copyright. Finally, the Court had to balance two competing interests which were both protected by the Convention – i.e. the right of Mr Neij and Mr Sunde Kolmisoppi to facilitate the exchange of information on the Internet and that of the copyright-holders to be protected against copyright infringement. 

Beatrice and her friends had never thought
of freedom to receive and disseminate
information as involving anything
but gossip exchange over a cup of tea

The Court reiterated that the Swedish authorities had a wide margin of appreciation to decide on such matters – especially since the information at stake was not given the same level of protection as political expression and debate – and that their obligation to protect copyright under both the Copyright Act and the Convention had constituted a weighty reason for the restriction of the applicants’ freedom of expression. Moreover, considering that Mr Neij and Mr Sunde Kolmisoppi 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. 

Therefore, the Court concluded that the interference with the right to freedom of expression of Mr Neij and Mr Sunde Kolmisoppi had been necessary in a democratic society and that their application had therefore to be rejected as manifestly ill-founded."

This Kat agrees with the decision of the Court and thinks that it would have been highly unlikely to achieve a different outcome, but what do IPKat readers think?