The Federal Supreme Court of Switzerland has rejected an application to have one of the country's largest ISPs block pirate sites. The Court recognized that the overseas 'pirate' platforms were breaking the law but said that Swisscom, one of the country's largest ISPs, was not involved in that infringement.

The blocking of pirate sites is now common in many countries of the world. In Europe, it’s particularly prevalent but a case just concluded in Switzerland has just bucked that trend.

While Switzerland is located geographically in Europe, it is not in the EU, meaning that the rules that cover the 28 members of the Union do not automatically apply. In a case involving a local film producer brought against a major ISP, that has provided an interesting twist.

In 2015, Zurich film company Praesens-Film filed a lawsuit targeting local Swisscom. It demanded that the ISP prevent its customers from accessing pirate sites but the action was far from straightforward, with the Commercial Court of the Canton of Bern rejecting the action in 2017.

Praesens-Film refused to give up, eventually taking its complaint all the way to the highest court in the land – the Federal Supreme Court. Now, however, that action has also been dismissed due to a reluctance to hold Swisscom liable for the infringing actions of others.

“In order for Swisscom to be obliged to block the Internet sites in question, it would need to be a participant in a copyright infringement by third parties, by making a legally relevant contribution to it. That’s not the case,” the Court wrote this week.

The Court agreed that the operators of the sites in question (and the companies making the movies available via hosting services) are breaking the law, but it refused to connect the ISP to those infringements.

“[S]wisscom can not be accused of making a concrete contribution to these copyright infringements. The activity of Swisscom is limited to offering access to the worldwide Internet,” the Court added.

“The films are not [released by Swisscom] but released by third parties from unknown locations abroad. These Third parties are neither customers of Swisscom nor are they otherwise in a relationship with them.”

The Court said that the fact that Swisscom and other ISPs in Switzerland provide technical infrastructure to enable customers to access the Internet is insufficient to directly link them to the infringement. If it ruled otherwise, all ISPs could be found liable.

It’s at this point it becomes clear why the Swiss Court’s opinion differs from others around the EU, who – with guidance from the European Court of Justice – have found that ISPs can indeed be held liable for infringement of copyr ight.

The infringements in such cases are not only carried out by pirate sites , they’re also carried out by the customers of ISPs, who illegally stream or download copyrighted content to their home connections. In Switzerland, however, downloading or streaming content – even when that content is from an unlicensed source – is not illegal.

“[T]here is no copyright infringement on the part of the users,” the Court said.

“Copyright law allows this use of published works for personal use, regardless of whether the source is lawful or unlawful. Legislators rejected the copyright revision, which would have prohibited the duplication of works from illegal sources for their own use.”

In conclusion, the Court ruled that any decision on future blocking of pirate sites lies in the hands of legislators.

While tackling the problem of overseas pirate sites is an issue for most countries, it’s claimed that Switzerland is actually home to many. According to a recent submission to the USTR by the MPAA, the country’s copyright laws are “wholly inadequate”, meaning that it has become a significant base for pirate services.

The decision of the Federal Supreme Court can be found here (pdf)