The Spanish Government has passed amendments to its Criminal Code that now make it a criminal offence to run a website "for profit" that links to unlicensed copyright protected content. "Profit" encompasses both direct and indirect forms of profit and would include websites carrying advertisements. The new law only applies to those who operate the sites: the legislation is not intended to prosecute private users, peer-to-peer networks that allow content sharing, or search engines.

The following four requirements must be met for the offence to have been committed: the persons in charge of the site containing the links (1) actively participates in the breach of copyright, (2) performs the specific job of maintaining and updating the links, (3) does not merely carry out "technical or automatic treatment of data provided by others" but collaborates or supervises to a certain extent, and (4) acts with the intention of directly or indirectly obtaining a financial profit, and to the detriment of another.

The offence carries a penalty of between 6 months to 4 years' imprisonment, with a maximum of 6 years' imprisonment in aggravated cases.

The new law is reportedly aimed at avoiding Spain's inclusion in the United States Trade Representative (USTR) Special 301 report in 2013 (or "naughty list" of countries with lower levels of protection for Intellectual Property) which could potentially lead to trade sanctions. Although the Ley Sinde, introduced in 2012, was intended to address this issue by providing for the closure of infringing sites, in practice the law has proved somewhat ineffective. Under the new provisions, the blocking of access to infringing sites becomes and exceptional and optional measure that can only be ordered by a Court in the case of repeat offenders.

Please see here for the client alert produced by Baker & McKenzie, Madrid.