Recent jurisprudence rendered by Spanish Courts establishes that in the case of copyright infringement over the internet, it is not necessary to sue the infringer, but rather the IT intermediaries that host the website.

The Court of Appeal in Barcelona has now dismissed an appeal filed by several IT companies against the first instance Judgment that established the above-mentioned doctrine.  The claimant had sued several IT companies requesting that the defendants must prevent access to a website that was allegedly infringing certain copyrights.  The petition was made based on the Spanish Copyright Act, which establishes the ability to request such action against the intermediaries, not only as an injunction but also as a petition on the merits.

The availability of this action, however, presents a potentially problematic situation that was argued by the IT intermediaries as an objection against the claim. The problem is that if the infringer is not sued, there would be no previous declaration of infringement and, consequently, the intermediaries could not be requested to prevent access. Here, the claimant previously requested the Spanish regulator to order the infringer to stop infringing the claimant’s copyright.  Although initially the infringer stopped the infringement, it eventually restarted it. The claimant also produced an expert report that showed that the infringer facilitated links that allow free downloading of music.  The Court of Appeal decided that it is possible to sue the intermediaries without the need to sue the infringer and without the need to obtain a previous declaration of infringement, so long as evidence of the infringement is provided.

Finally, another problematic issue is that this action might determine that non-infringing content could also be prohibited. However, if the main use of the website infringes the copyright, the decision to prevent access is not disproportionate.