(1) The Criminal Court of Appeal of Castellón 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 infringing materials available online.
(2) The Court of Appeal applied the language of the new copyright reform (see above) 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.
(3) 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. See also CIS blog
Topic, claim, or defense
Appellate Domestic Court
Type of service provider
Host (Including Social Networks)
Trigger for OSP obligations
Type of law