[x-pubpol] ECHR finds Pirate Bay prosecution justified

[Joly MacFie]

http://ipkitten.blogspot.com/2013/03/european-court-of-human-rights-decides.html

By Eleonora Rosati


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.

"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.

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."

--
---------------------------------------------------------------
Joly MacFie  218 565 9365 Skype:punkcast
WWWhatsup NYC - http://wwwhatsup.com
 http://pinstand.com - http://punkcast.com
 VP (Admin) - ISOC-NY - http://isoc-ny.org
--------------------------------------------------------------
-