Supreme Court rules on internet-related copyright infringement

On 4th July 2012 the Supreme Court handed down its ruling in Kicki Danielsson (Ö 2256-10), which deals with the question of jurisdiction in internet-related copyright infringements.

Facts
Kicki Danielsson concerned an alleged copyright infringement by means of a photograph placed on a website, and whether the photographer had the option of bringing an action for non-material damages, either before the courts of the state in which the publisher of that content is established or before the courts of the state in which the centre of the photographer’s interests is based. The photographer brought his claim against the publisher, a Norwegian company, before the Stockholm District Court. The district court dismissed the action, stating that the Swedish courts have no jurisdiction to hear the case under the Lugano Convention, which governs the question of jurisdiction in relations between Sweden and Norway. The photographer’s appeal was later dismissed by the Svea Court of Appeal. However, the Supreme Court decided to hear the case in the light of recent case law of the European Court of Justice (ECJ).

Supreme Court judgment
With reference to the ECJ's judgment in eDate Advertising GmbH v X and Martinez v MGN Ltd (Joined Cases C-509/09 and C-161/10), the Swedish Supreme Court stated that the interpretation provided by the ECJ in respect of the provisions of the EU Regulation on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (44/2001) is also valid for those of the Lugano Convention whenever the provisions of the two instruments are equivalent. As a general rule, Article 2 of the Lugano Convention assigns jurisdiction to the state in whose territory the defendant is domiciled. However, Article 5(3) lays down a special jurisdiction rule for matters of damages, which justifies the attribution of jurisdiction to those courts where the harmful event occurred. In eDate, which concerned an alleged infringement of personality rights by means of the Internet, the ECJ elaborated on the interpretation of the wording “where the harmful event occurred” and found that a person who considers his rights infringed may bring an action for liability, in respect of all the damage caused, before either the courts of the member state in which the publisher of that content is established or the courts of the member state in which the centre of his or her interests is based. That person may also bring an action before the courts of each member state in the territory of which content placed online is or has been accessible. However, those courts have jurisdiction only in respect of the damage caused in the territory of the member state of the court seized. According to the Act on Copyright in Literary and Artistic Works (SFS 1960:729), a rights holder is entitled to non-material damages where a copyright infringement has been carried out intentionally or negligently. The Supreme Court found the purpose of this compensation to be similar to the one for infringement of personality rights, which was dealt with in eDate. Moreover, the photographer was also habitually resident and pursued his professional activity in Sweden; for this reason the Supreme Court found the  considerations underlying the ECJ’s decision in eDate applicable. As a result, the district court’s dismissal order was annulled and the case was referred back to the district court for continued hearing.

Implications
The rules of jurisdiction must be predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile, except in a few situations where the subject matter of the litigation or the autonomy of the parties justifies a different linking factor. In eDate the ECJ adopted a wide interpretation of the special jurisdiction rule, which gives a potential claimant several options for where it may bring an action against an infringer. However, it is yet to be determined whether this development of ECJ case law will contribute to an increase in forum shopping by claimants. In light of this decision, publishers should also be more cautious when posting information on the Internet.