More on the Swedish application of GS Media

Again on GS Media,
but Swedish edition

This blog has covered extensively the issue of linking and copyright, and reported that - in the aftermath of the September decision of the Court of Justice of the European Union (CJEU) in GS Media [Kat-coverage here] - there have been applications of this ruling at the level of Swedish [here] and German [here and here] courts.

Returning to Sweden, Katfriend Pär Öhman (Bildombudsmannen AB) [Pär has represented Rebecka Jonsson in a number of actions brought over unauthorised linking to unlicensed content to which she owns the copyright] explains in detail what happened in the Swedish proceedings.

Here's what Pär writes:

"The bungee jump nightmare

In 2012, Swedish national Rebecka Jonsson filmed her Australian friend’s bungee jump from the Victoria falls bridge. The 111-metre jump quickly turned into a nightmare as the bungee cord snapped and Jonsson’s friend fell into crocodile-infested waters. Fighting her way to loosen the bungee cord, the woman survived by dragging herself to shore.

Jonsson’s friend recovered without any permanent damages and the two were approached by an Australian TV station that was interested in this story. 

Jonsson agreed to a limited licence for the TV station to show the video she had made on Australian TV. She never uploaded the film on the internet and did not give anyone else permission to do so.

When the film was later made available online, the Australian TV station confirmed that it only had shown the film as agreed and had not unlawfully sold third paries any rights over it. 

Jonsson has since then acted against alleged infringers worldwide. All of this has happened prior to and alongside the CJEU case law regarding linking.

Pre-GS Media

Even though the Attunda District Court judgment on 13 October 2016 (case no FT 11052-15) might be the first national application of GS Media [here] was not the first judgment regarding linking (embedding from YouTube) to Rebecka Jonsson’s film. 

One of many is the Attunda District Court judgment on 7 September 2016 (case no FT 10825-15) which happened to be decided the day before GS Media. Based on the circumstance that the film had never been uploaded on YouTube with Rebecka Jonsson’s consent, the court concluded, by referring to the CJEU decision in Svensson [Kat-coverage here], that the defendant had infringed Jonsson’s copyright by communicating the film to a 'new public'.

The Attunda District Court

Post-GS Media

The assessment slightly changed after the GS Media decision. 

Instead of just looking at whether the protected work had been uploaded without the copyright owner's consent, the court also considered whether the defendant had provided the link for profit and, if so, whether the defendant could rebut the presumption of full knowledge.

The court concluded that the defendant had provided the link for profit as it was done on a news website. The defendant was not able to rebut the presumption. The defendant had argued that the film was free of rights as it had been uploaded on YouTube with the possibility to embed. However, the defendant was not able to prove that this had been done with the consent of Jonsson.

Comment

A fundamental principal in Swedish civil procedural law is that a court is bound by the parties' claims and circumstances. This means that the parties control what the court can decide on. As neither of the defendants did argue for the application to their conduct of any copyright exception or limitation, the Attunda District Court did not and could not apply any.

Even though the Attunda District Court stated that there is no Swedish case law regarding linking, it should be noted that in fact there is (NJA 2000 s. 292 MP3). Following the CJEU decisions in Svensson and C More [here and here; both references for a preliminary ruling from Sweden], in C More [note from Eleonora: the Svensson national litigation was eventually settled] the Swedish Supreme Court found that the defendant had communicated hockey games to the public as the links provided the possibility to circumvent restrictions, ie paywalls (NJA 2015 s. 1097 C More).

If you don't tell me, I can't know

One circumstance that the Attunda District Court did not mention clearly was that Rebecka Jonsson had sent the defendant cease-and-desist letters. Despite receiving such warnings, the defendants had maintained the links.

The big question raised after GS Media is of course the one of profit. I do not necessarily agree that the Attunda District Court’s interpretation is strict. If a company operating a news website was not considered to do so for profit, then the application of GS Media could imply a notice-and-takedown regime with limited liability. This would weaken the protection of copyright online.

In my opinion the presumption of full knowledge is balanced considering the possibility for the defendant to rebut the presumption.

The presumption of knowledge gives the author the high level of protection needed online. At the same time, it is possible, even for profit, to provide links if “the person who posted such a link carries out the necessary checks” (GS Media, para 51). 

This kind of consideration is not totally unfamiliar in Sweden, as it follows from case law (NJA 1995 s. 164 Stickadtunika) that the alleged infringer has the responsibility to carry out necessary checks (undersökningsplikt). However, failing to do so could not necessarily constitute an infringement, but would simply amount to negligence (which is required for damages). 

Comparing the various Attunda District Court’s judgments it is noticeable how GS Media has opened up a possibility for the defendant to avoid liability by rebutting the presumption.

In none of Rebecka Jonsson’s cases have the defendants, in my opinion, carried out such necessary checks. The defendants have in most cases not carried out any checks at all. They have never been in contact with the YouTube user that had unlawfully uploaded the film prior to linking. It is most of the time not too difficult to see if a work is unlawfully uploaded, especially not for news websites that daily work with fact checking and copyright.

In the future, it will be interesting to see what strategy news websites take. Will they argue not to have provided the link for profit or try to rebut the presumption by taking necessary actions before publishing the relevant link?"

Many thanks Pär for this interesting insight!