As we mentioned a few months ago here, and previously here, Rojadirecta’s popular website of links Rojadirecta (www.rojadirecta.me), through which any user could access sports retransmissions without payment, has been immersed for a long time in a judicial process initiated by Mediapro and GolTV, the legal holders of the audiovisual rights to the football matches. La Liga and other national professional football tournaments are available through this website.
On November 22, 2016, Commercial Court No. 2 of A Coruña issued a judgment finding the sole shareholder and Puerto 80 Projects, S.L.U., the company that owns and manages Rojadirecta, jointly and severally liable for infringing Mediapro and GolTV's intellectual property rights. According to the judgment, the defendants must stop permanently and immediately the illegal exploitation of the audiovisual recordings owned by the claimants, and specifically the provision of links through any website that allows the viewing of football matches —live or deferred— produced or broadcasted by the claimants.
The judgment, which is still not firm, sets an important precedent in our law, applying, for the first time, the recent considerations of the Court of Justice of the European Union (“TJUE”) in the GS Media case (C-160/15). In that case, the TJUE considered that including links to content infringing intellectual property rights could be considered a violation of these rights, as discussed in this Blog.
The Court considers, based on the GS Media case, that Rojadirecta's activity is an act of communication to a “new” public (a requirement that the TJUE considered necessary in the GS Media case) to the extent that (i) Rojadirecta’s system allows internet users to avoid the restriction measures adopted (to limit access to subscribers) on the website where the protected works are located and which if Rojadirecta had not intervened they would not have been able to access; and (ii) Rojadirecta knew or could reasonably be aware of the illegal nature of making these works available on the internet.
The court also considers that the exemption from liability provided for in article 16 of Law 34/2002 on Services of the Information Society and Electronic Commerce does not apply to the extent that Rojadirecta is not merely a content host, but acts as an editor, playing an active role with knowledge and control of the links, as well as selecting and planning content. Also, it does not offer technological means for third parties to upload links on the internet.
The court concluded that Rojadirecta’s deliberate activity is an act of unauthorized public communication of audiovisual recordings that infringes the claimants’ intellectual property rights. Thus, it was not necessary to assess the existence of infringements based on acts of unfair competition (which was the claimants’ subsidiary petition).