In its judgment of 13 March 2013, the European Court of Human Rights (the “ECtHR”) declared that exchange of information on the Internet is covered by a person’s right of freedom of expression, contained in Article 10 (1) of the European Convention on Human Rights (the “ECHR”). However, this right may have to take second place to the protection against copyright infringements.
The case before the ECtHR had been brought by two Swedish citizens who founded the website “The Pirate Bay”, one of the world’s largest file sharing websites. The Pirate Bay website is often used as a platform to exchange copyright protected music, films and computer games. The Pirate Bay founders had been found to infringe and facilitate infringement of copyright by the Swedish Supreme Court (Högsta domstolen). In the national proceedings, the applicants before the ECtHR had been sentenced to eight and ten months imprisonment respectively and both had been held jointly liable for damages of approximately EUR five million to several companies in the entertainment industry. Before the ECtHR, the applicants argued that their conviction before the national courts was contrary to Article 10 (1) of the ECHR.
Article 10(1) of the ECHR states as follows:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
The ECtHR held that this provision also protects the right to receive and impart (or disclose) information on the Internet, even if the information is copyright protected. However, Article 10(2) of the ECHR provides that interference with this right under Article 10 (1) of the ECHR is possible if such interference is (i) prescribed by law; (ii) pursues a legitimate aim; and (iii) is necessary in a democratic society. In relation to the necessity for the democratic society, the Court considered that a balance needs to be struck between the right of the applicants to facilitate the exchange of information on the Internet and the right of the copyright-holders to enforce their exclusive rights.
In its analysis of how the national court had made this balancing exercise, the ECtHR considered that the information on Pirate Bay did not deserve the same level of protection as political expression and debate. On this basis, the ECtHR held that the conviction of the applicants by the Swedish Supreme Court was not contrary to the right of freedom of expression. The ECtHR also took account of the fact that the applicants had not removed the copyright protected material despite having been requested to do so.
This case adds to the case law of the ECtHR on the balancing exercise under Article 10 of the ECHR with regard to copyright protection (See, for instance, the ECtHR judgment of 10 January 2013, VBB on Belgian Business Law, Volume 2013, No. 2, p.12, available at www.vbb.com). It seems that copyright protection generally trumps the freedom to exchange copyright protected material under Article 10 of the ECHR unless the freedom of political expression and debate are at stake. Nevertheless, the balancing exercise must be assessed on the basis of the facts of the case and taking account of the guidance provided by the ECtHR. In this regard, it is for example unclear whether the ECtHR implies that a different result would have been achieved if the applicants had taken action to remove copyright infringing works from The Pirate Bay website after being urged to do so by the entertainment companies.
