Sweden announces its proposal to fight illegal file-sharing

28 April 2008

Jesper Lindfors, Catrin Agerhäll

After considerable debate on how to implement the EU Enforcement directive, the Swedish Government coalition parties have now published their joint approach on online copyright infringement. The proposal will allow copyright holders to apply for a court order forcing the ISPs to reveal identifying information about customers whose IP addresses have been used for copyright infringement.

The Swedish Minister of Justice, Ms Beatrice Ask, and the Minister of Culture, Ms Lena Adelsohn Liljeroth, published a joint statement in the daily newspaper “Svenska Dagbladet” on 14 March 2008. They announced that the Government has now chosen to reject parts of the controversial Government commissioned report “Music and Film on the Internet – Threat or Opportunity” (conducted by the Swedish Justice Department investigator Ms Cecilia Renfors). This report, presented in September 2007, attracted attention as it called for new legislation prescribing that the ISPs should have an obligation to terminate the contract of subscribers who repeatedly downloaded films and music without permission.

The Government has concluded, however, that such measures could have a serious impact, in a society where internet access has become a key welfare issue. Instead, copyright holders will be entitled to apply for a court order to obtain the names of the subscribers whose IP addresses have been used for illegal file-sharing from the ISPs. However, this will be conditional on the copyright holder being able to present proof that the internet service subscription has, in fact, been used for infringement.

The new proposal avoids a situation where the ISPs could be forced “to police” their own customers. To protect individuals from misuse of their personal data, the upcoming bill is also said to contain clear rules as to what constitutes misuse of information regarding IP addresses. Suspected file-sharers, whose personal data has been revealed by the ISPs, will also be entitled to receive information from the ISPs within a certain time.

The published opinion expresses the view that this proposal will result in “well-balanced legislation”. The aim, presumably, is to maintain a balance between intellectual property rights and privacy rights. The importance of maintaining this balance was seen in a judgment given by the EC Court in the Telefónica case in January this year. The EC Court held that even though European law does not require ISPs to disclose their subscribers’ identities for the purpose of civil litigation, it does not prohibit member states from imposing such requirements, as long as the legislation balances intellectual property and privacy rights.

At present copyright holders’ main option is to report online infringement to the police. As the infringer is often anonymous, only the police, the public prosecution authority (or any other public authority whose task it is to intervene against such offences), has a legal right to obtain identifying information from the ISPs.

In practice however, the police is limited, since a duty of confidentiality prevents the ISPs from revealing information regarding subscribers except in limited circumstances. Information can only be disclosed if the penalty prescribed for the offence includes imprisonment or if the offence, in the view of the authority, entails a sanction other than fines. The new proposed approach however, improves the opportunities for civil actions when seeking to combat illegal file sharing.

According to the published opinion, the Government will move ahead with the legislative work during the spring.