Having being found guilty of copyright infringement offenses and subsequently denied the opportunity to be heard by Sweden's Supreme Court, one of the founders of The Pirate Bay is taking his case to the European Court. The lawyer of Fredrik Neij believes that the function of The Pirate Bay is protected by the Convention for the Protection of Human Rights.

On February 1st, Sweden’s Supreme Court announced its decision not to grant leave to appeal in the long-running criminal case against the founders of The Pirate Bay.

This meant that the previously determined jail sentences and fines handed out to Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström would stand.

With Lundström’s and Svartholm’s fates settled and Sunde’s recent plea for clemency filed, only one person’s direction was left unclear – that of Fredrik Neij.

Through a statement penned by his lawyer Jonas Nilsson, today we learn that Neij intends to take his case to the European Court.

“According to Article 10 of the European Convention on Human Rights, which guarantees citizens of Sweden the freedom to receive and impart information, we believe that Frederick Neij’s right to freedom of expression has been denied him,” says Nilsson.

“According to our complaint to the European Court, The Pirate Bay’s services – to transfer non-proprietary information among users through an automated process on the Internet – is protected under that article of the Convention.”

Nilsson says that The Pirate Bay never transferred or transmitted copyright information – that was the responsibility of the site’s users. The Pirate Bay’s function, he says, was “to allow the free dissemination of information via non-copyrighted torrent files.”

The lawyer also notes that since the torrent file information itself wasn’t illegal, the function should be covered by Article 10. He adds that he will also ask for further scrutiny as to whether it was indeed correct to hold Fredrik Neij responsible for what other people did when they used The Pirate Bay.

“In our opinion, it is like being held guilty in court because someone delivered a letter with illegal content. Another, and perhaps even more relevant analogy, would be if the founders of a buying and selling site were found guilty after someone sold a stolen bicycle after it was advertised on the site,” Nilsson explains.

Nilsson believes that it’s quite rightly not easy to get cases heard before Sweden’s Supreme Court, but by hearing certain pivotal cases valuable guidance can be gained for future rulings. Because a definitive ruling would provide much-need clarity in similar cases involving liability, the Supreme Court should have heard The Pirate Bay case, Nilsson says.

“In light of the Supreme Court decision [not to hear the case], we now see no alternative but to pursue this case through to the European Court. That clear legislation or legal precedent is missing in an area that affects us all – the Internet – represents a problem for the rule of law, today and tomorrow,” Nilsson concludes.