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WILMAP: Sweden

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LEGISLATIONAct on Electronic Commerce and Information Society Services (2002:562), June 6, 2002 [Act incorporating the E-Commerce Directive into Swedish law. See in particular Sections 16-19.] Personal Data Act (1998:204), April 29, 1998   [There are several types of situations in which Internet intermediaries may need to consider the Personal Data Act. The types of rules that apply are determined in important regards by reference to whether the intermediary merely needs to consider the abuse rules in Section 5 a, or the full force of the Act.] Act on Responsibility for Electronic Bulletin Boards (1998:112), March 12, 1998 [Despite its technology-specific title, this Act has a broad scope and is of fundamental importance to Internet intermediaries. Essentially it outlines three duties for affected Internet intermediaries: (1) an information duty (Section 3), (2) a supervision duty (Section 4), and (3) a duty to erase certain messages. (Section 5)]  Act on Copyright in Literary and Artistic Works (1960:729) as amended up to April 1, 2011 [Consider in particular Section 57 b.] Penal Code (1962:700), January 1, 1965 [Consider in particular Chapter 23 Section 4.]

DECISIONS

Superior CourtsSupreme Administrative Court of Sweden (Högsta förvaltningsdomstolen) HFD 2012 ref. 21, 5 June 2012 (Swedish only)[privacy, data protection, administrative law, hosting provider, data controller] [The provider of an online self-service facility was deemed to be a data controller.] Supreme Court of Sweden (Högsta Domstolen) NJA 2007 s. 805, November 7, 2007 (Swedish only)[criminal liability, hosting provider, removal] [The matter related to whether the failure to remove certain content could result in criminal liability. The Court concluded that it had not been obvious that the content was illegal and that therefore there was no obligation to remove the content under general criminal law principles.] Supreme Court of Sweden (Högsta Domstolen) NJA 1996 s. 79, February 22, 1996  (Swedish only)[copyright, infringement, criminal liability, hosting provider, bbs] [The owner of a BBS had dealt with at least 1000 copyright protected software products, amongst other things making the software products available to 300 paying subscribers. The matter related to whether the owner of a BBS could be liable for copyright infringements committed via the BBS. The Court concluded that there were serious gaps in the copyright protection afforded by the law.] Supreme Court of Sweden (Högsta Domstolen) NJA 1996 s. 74, February 22, 1996 (Swedish only)[copyright, infringement, criminal liability, hosting provider, bbs, seizure] [The matter related to whether the owner of a BBS could be liable for copyright infringements committed via the BBS. The key issue regarded what parts of that party’s technical equipment was to be seized.]

Appellate CourtsCourt of Appeal (Svea hovrätt) ‘The Pirate Bay case’ RH 2013:27, 26 November 2010 (Swedish only)[copyright, infringement, torrent, ThePirateBay, linking, jurisdiction] [(1) Importantly this case tested the scope of the protection afforded to intermediaries under the E-Commerce Directive as implemented into Swedish law. The Court concluded that, due to the nature of its operation, The Pirate Bay could not rely on the protection afforded to some intermediaries under the E-Commerce Directive. (2) The case, is also interesting as it considered whether a Swedish court could claim jurisdiction where part of the relevant conduct, in a copyright violation, had taken place abroad. It was clear that some of The Pirate Bay’s users (i.e. the ones committing the actual copyright infringements – the principal offense) were located outside Sweden at the time of committing the copyright infringements. The relevant law makes clear that an offense is regarded as committed where the criminal act took place as well as where the offense was competed (Chapter 2, section 4 Criminal Code). Thus, the courts had to decide where the principal offense was committed when The Pirate Bay’s users were located outside Sweden at the time of committing the copyright infringements. Had the Court concluded that the principal offenses in such cases had been committed outside Sweden, Swedish jurisdiction could be called into question and the application of Swedish law may not have been permitted. However, the District Court stated that: “According to the District Court, there are strong reasons to take the view that an offense that means that one makes accessible something via the Internet is committed in a country where an Internet user may access the information that is made available, provided that the making available has a effect on the legal rights held in that country [...]. This is particularly so where the information – as in this case – is published in a language spoken in that country. This suggests that all of the principal offenses, including those committed by persons located outside Sweden, shall be regarded as committed in Sweden, This conclusion is further supported by the fact that servers (computers) that have hosted The Pirate Bay website and tracker have been located in Sweden.” The Court of Appeal took a slightly more sophisticated approach discussing the matter at greater length but reached a similar conclusion since the torrent files were placed on servers in Sweden.] Court of Appeal (Svea hovrätt) ‘Black Internet case’ Ö 7131-09, 4 May 2010 (Swedish only)[copyright, infringement, torrent, ThePirateBay, linking] [Related to the ‘The Pirate Bay’ case.]

CONTRIBUTORSDan Jerker B. SvantessonProfessor, Faculty of Law, Bond University, AustraliaEmail: Dan_Svantesson at bond.edu.au[personal page]


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