Active provider, criminal sanctions: the Bajatetodo case in Spain

By Revital Cohen

A recent decision by the Castellón Criminal Court of Appeal appears to signal a change of direction in Spanish case law following the reform of the Spanish Intellectual Property Act.

The Criminal Court of Appeal in Castellón has recently upheld a first instance ruling which imposed a fine of €21,000 and an 18-month prison term on the webmaster of www.bajatetodo.com for providing clickable links to works protected under copyright including movies, music, software and games.

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

The Court of Appeal held that the intent of the webmaster-appellant to profit from his actions was unquestionable, as he received a substantial financial benefit directly attributable to the infringing activity (i.e. from advertising and assignment of users’ accounts to third parties).

As for the issue of liability, the webmaster claimed that he was eligible to benefit under the linking safe harbour provision of Article 17 of Law No. 34/2002 of July 11, 2002 on Information Society Services and Electronic Commerce, 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 bajatetodo.com 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, 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 Pablo Soto cases]. 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 Law 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, 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.

About the author

Revital Cohen
Revital Cohen is a member of Baker & McKenzie’s Intellectual Property Practice Group based in Barcelona, Spain. She may be reached at revital.cohen[at]bakermckenzie.com.