{"id":6386,"date":"2019-07-15T09:49:52","date_gmt":"2019-07-15T07:49:52","guid":{"rendered":"https:\/\/www.gulliksson.se\/?p=6386"},"modified":"2019-08-19T09:54:57","modified_gmt":"2019-08-19T07:54:57","slug":"is-twitter-a-newspaper-the-swedish-patent-and-market-court-of-appeal-says-so","status":"publish","type":"post","link":"https:\/\/www.gulliksson.se\/en\/is-twitter-a-newspaper-the-swedish-patent-and-market-court-of-appeal-says-so\/","title":{"rendered":"Is Twitter a newspaper? \u2013 The Swedish Patent and Market Court of Appeal says so"},"content":{"rendered":"

[vc_row][vc_column][vc_column_text]By Sofia Sj\u00f6\u00f6<\/a><\/em><\/p>\n

A Swedish politician found herself in a bit of a pickle when one of the major newspapers published not too flattering photos of her, which they snatched from her private Facebook page. The question was \u2013 had the journalist infringed her exclusive rights under the Swedish Copyright Act or not? By overturning the Patent and Market Court\u2019s judgement, the Court of Appeal held that the newspaper was within its rights when publishing the \u201cprivate\u201d photos.<\/strong><\/p>\n

The facts
\n<\/strong>In connection with the Swedish election, the newspaper published ten photos from the politician\u2019s Facebook page, on which she was, inter alia, posing together with another prominent political figure in front of an Israeli tank. The photos were made available to the public both on the newspaper\u2019s website and via its Twitter account. The politician argued that the newspaper had infringed her copyright to the photos by distributing them to the public. The newspaper countered by stating that it was within its rights due to the information value of the photos.<\/p>\n

The law
\n<\/strong>The main rule under Swedish- as well as EU law is that the creator of a literary or artistic work obtains an exclusive right to, inter alia, exploit the work by making copies or making it available to the public. This includes posting a photo on a website or other social media, say Twitter, which was what the newspaper had done in this case. However, as for most rights stipulated by law, there are a number of exemptions to this main rule. According to Section 23 of the Swedish Copyright Act, a copyright protected work, which has been made public<\/em>, may be reproduced in a newspaper<\/em> and a periodical in conjunction with a report on a current news event<\/em>. In addition, the reproduction must be carried out in conformity with proper usage,<\/em> and only to the extent called for by the information purpose, for this exemption to be applicable.<\/p>\n

The exemption found in Section 23 of the Swedish Copyright Act correlates with Article 5.3 c of the EU directive[1]<\/a>, which entitles the member states to limit the exclusive right in relation to news reporting, provided it is justified by the information purpose. Here, the different right-holders\u2019 interests shall be weight against each other and the classic doctrine of proportionality is to be applied. Further, it is required that the moral rights (e.g. the right to get credit) are respected, if this is not found to be impossible.<\/p>\n

Made public
\n<\/strong>In the case at hand, it was undisputed that the photos had been legally uploaded to the Facebook page in question. The issue was whether this transfer entailed the photos having been made available to the public, as understood under the Swedish Copyright Act.<\/p>\n

The journalist behind the article explained that he had accessed the photos via his own, private Facebook account, and thus, no further acceptance or action was required to gain access. In other words, it was not required to be one of the politician\u2019s \u201cfriends\u201d on Facebook to see the photos. The Court held that the photos therefore were legally available to a great and undecided number of people. Consequently, all ten photos had been made public by the politician herself. The fact that she thought that the photos were private did not change this; as the publicly available<\/em> requirement is objective, her subjective view was insignificant.<\/p>\n

Newspaper
\n<\/strong>And now to the interesting part \u2013 the definition of newspaper<\/em>. It was undisputed that the newspaper provided articles on its website, which was updated on a daily basis. Further, it was undisputed that the newspaper provided information about these articles on Twitter \u2013 with a link to the article in question. The fact that digital publications published by a company within the journalistic industry constitute newspapers<\/em> as understood under Section 23, Paragraph 3 of the Swedish Copy Right Act is rather uncontroversial. Thus, the Court found that the articles published on the website fell within the exception to the exclusive right. An interpretation to the contrary would drastically limit the possibility to provide information and would in fact limit the statutory right to access to information. The Court concluded that because the information distributed via Twitter was in direct connection<\/em> with the report on current news event that occurred on the website, it constituted an extension <\/em>of the actual website. Therefore, Twitter falls within the definition of the word newspaper<\/em> (at least in this specific case).<\/p>\n

Current news event <\/strong>
\nThe Court held that according to the applicable legislative history (cf. SOU 1956:25, p. 208), a \u201ccurrent news event\u201d should be a recent event. However, due to the basic information purpose embedded in the exemption, there is room for interpretation as for what the concept of time constitutes in this regard. This is interesting as the photos in question were taken a while back. However, after taking the following circumstances into account:<\/p>\n