As we reported a few days ago, the recent Spanish copyright reform granted enhanced powers to the Spanish Copyright Commission to target websites providing links to infringing works in a purposeful and massive way. Recently, the Criminal Court of Appeal of Castellón has given a first judicial implementation to this principle and departed from a long-standing judicial tradition. The Court of Appeal upheld a previous decision charging the webmaster of the website Bajatetodo.com with a eighteen-month prison term under Article 270 of the Spanish Criminal Code. The website used to provide links to a miscellaneous array of infinging materials available online.

The Court of Appeal applied the language of the new copyright reform by stressing that the webmaster went well beyond a mere passive neutral intermediary role by selecting, ordering and indexing the online resources to access the infringing materials. For this reason, the webmaster could not benefit of the linking safe harbour, specifically provided by the Spanish implementation of the eCommerce Directive. So far, Spanish courts had been extremely careful in construing linking as copyright infringment. They recurrently ruled that webmasters arranging and indexing links to infringing materials still maintained a passive intermediary role that merely facilitated the download of unlawful content, thus this activity was sheltered by the linking exemptions provided by Spanish law.

Additionally, the Court of Appeal of Castellón made specific reference to the Svensson case decided by the European Court of Justice. The Court rejected the earlier assumption by Spanish courts that operators of websites linking to infringing contents online cannot be held criminally liable because they do not engage in acts of communication to the public. According to Svensson, the Spanish Court argued, linking to infringing contents constitutes unauthorized communication to the public, and therefore copyright infringment, which triggers the website operators' criminal liability. As we argued elsewhere, Svensson may prove to be a powerful precendent for criminalizing linking activities that were earlier viewed by courts as passive neutral acts protected by intermediary liability safe harbours.

Addition information regarding this case may be also found here.