ORDER Issued on 11 September 2019 by the Supreme Court
Total Page:16
File Type:pdf, Size:1020Kb
ORDER issued on 11 September 2019 by the Supreme Court composed of Justice Hilde Indreberg Justice Henrik Bull Justice Arne Ringnes Justice Wenche Elizabeth Arntzen Justice Erik Thyness HR-2019-1725-A, (case no. 19-022475SIV-HRET) Appeal against Borgarting Court of Appeal’s order 13 December 2018 Fredrik Ljone Håkon Wium Lie (Counsel Halvor Manshaus) v. Stiftelsen Lovdata (Counsel Jon Wessel-Aas) (1) Justice Thyness: The case concerns a second-tier appeal against an interim measure prohibiting, among other things, the publication of Supreme Court rulings extracted from Lovdata’s databases. The issue at stake is whether the freedom of expression entails restrictions on the protection of databases under the Copyright Act. (2) Background (3) Lovdata is a foundation established in 1981 by the Ministry of Justice and the Faculty of Law of the University of Oslo. Its objective, which is set out in Article 3 of the Articles of Association, is as follows: “Lovdata is a non-profit organisation whose objective is to produce, maintain and operate legal information systems. The organisation may take on assignments from public as well as private institutions. The foundation may also contribute to research and development within the scope of its objective.” (4) According to Article 6, Lovdata’s board of directors is composed of five members with personal deputies. Each of the Ministry of Justice, the Faculty of Law of the University of Oslo, the Norwegian Bar Association, the Norwegian Judges’ Association and the Storting (the parliament) appoints one board member together with a deputy. The Ministry of Justice appoints one of the board members as the chair of the board. (5) According to Article 11, Lovdata is obliged to maintain a database of acts of law. Since 2001, in accordance with an agreement with the Ministry of Justice, Lovdata has been the official publisher of acts and regulations. According to Regulations of 21 June 1994 No. 664, the Ministry of Justice may enter into agreements with Lovdata regarding the use of Lovdata’s databases. These databases are exempt from seizure by creditors, and the State is entitled to acquire them if Lovdata is dissolved or stops providing legal information services. Apart from that, Lovdata’s databases are not subject to any special rules. (6) Since the 1980s, Lovdata has published judicial rulings. In addition, Lovdata has carried out an extensive digitalisation of rulings that previously only existed in paper format in the publications Norsk Retstidende (Rt) and Rettens Gang (RG). (7) In 1987, Lovdata entered into an oral agreement with the Supreme Court regarding the supply of judicial rulings. From 2000, the documents were transmitted electronically in encrypted form via a separate line. The rulings were sent without summaries and were not anonymised. Lovdata produced summaries. Lovdata was the sole recipient of Supreme Court rulings in this manner, while the editors of Norsk Retstidende received them on disks. (8) For a long period, Lovdata passed the Supreme Court rulings on to other providers of legal information that had entered the market over time. However, this arrangement ceased in 2004. The other providers then wanted to receive the rulings directly from the Supreme Court, but this was rejected with reference to the inability of the Court’s data systems to handle electronic transmission to multiple recipients. Since 2008, the Supreme Court has made its rulings available to the public by means of publication of the internet. (9) Lovdata’s database of acts and regulations is available free of charge at Lovdata.no, although with more limited search options and notes than for paid access. The same applies to the judicial rulings for a period of one year from publication. For access to Lovdata’s other databases with associated search tools, one may subscribe to Lovdata Pro containing, in case no. 19-022475SIV-HRET addition to rulings from all instances, extensive materials including preparatory works, circular letters, administrative decisions etc. The annual fee of a one-user license is currently NOK 8,900. For multiple-users licenses, the fee per user decreases along with the number of users. (10) Rettspraksis.no is a website created by the appellants Håkon Wium Lie and Fredrik Ljone. (11) The following is stated on the front page of rettspraksis.no: “Welcome to Rettspraksis.no - A free resource for searches and insight in judicial rulings. The website currently has 68 244 pages” (12) The following is stated under the headline “About Rettspraksis.no”: “Rettspraksis.no is a free resource to search and find information in judicial rulings. Judicial rulings give insight into applicable law and historical legal development and are among our most important sources of law. Access to information is essential for the rule of law, and when the authorities fail their duty to inform the public, something must be done. We are a private initiative, a hard-working group of people, who develop and maintain this website in our spare time.” (13) Rettpraksis.no is a non-profit project. (14) The website was launched on 17 May 2018. At the time of the launch, the service included Supreme Court rulings from the period 1836–2005 taken from a DVD issued by Lovdata in 2005, as well as 740 Supreme Court rulings from 2006 and 2007 donated to Rettspraksis.no by a private individual. The Court of Appeal found that these rulings had been downloaded from Lovdata’s online databases. Finally, Rettspraksis.no contained Supreme Court rulings from 2008 onwards taken from the Supreme Court’s website. As concerns the rulings prior to 2002, the material on the 2005 DVD has later been deleted and replaced by materials taken from a CD issued by Lovdata in the autumn of 2002. (15) After the managing director of Lovdata, Odd Storm-Paulsen, had told Advokatbladet [a magazine published by the Norwegian Bar Association] that he believed Rettspraksis.no had committed “theft of materials”, Fredrik Ljone sent an email on 29 May 2018 to Storm-Paulsen in which he wrote: “As we know, the debate on free sources of law has started, and much suggests that judicial rulings will now become freely available. We will therefore urge Lovdata to take the wheel, get in control of the inevitable, and publish the rulings itself, free of charge to the public. You have the best systems for this, and now you have the chance to get ahead of the Norwegian Courts Administration and avoid further escalation of the debate. Rettspraksis.no will then be shut down.” (16) On 31 May 2018, Lovdata filed a petition for an interim measure against Fredrik Ljone and Håkon Wium Lie. (17) Without a preceding oral hearing, Oslo County Court issued the following order on 1 June 2018: “1. Fredrik Ljone and Håkon Wium Lie are to remove all judicial rulings on case no. 19-022475SIV-HRET Rettspraksis.no that originate from Lovdata’s database, and delete all files on Rettspraksis.no downloaded from Lovdata’s database. 2. Fredrik Ljone and Håkon Wium Lie are not to transfer or contribute to the transfer of judicial rulings and/or files as mentioned in item 1 to third parties, and are not to publish or contribute to the publishing of the same via other digital platforms. 3. Fredrik Ljone and Håkon Wium Lie are not to delete information on the development, operation, publishing, use or extraction of information from Rettspraksis.no. 4. Håkon Wium Lie and Fredrik Ljone are to pay costs of NOK 102 825 to Lovdata within two weeks of the service of this order.” (18) Upon the request of Ljone and Lie, Oslo County Court conducted an oral hearing and issued the following order on 21 September 2018: “1. Fredrik Ljone and Håkon Wium Lie are immediately to delete all Supreme Court rulings taken from a DVD issued by Lovdata in 2005, and Supreme Court rulings taken from Lovdata’s online databases, including from 2006 and 2007, regardless of who the source of these rulings is. This also applies to the summaries of the Supreme Court rulings that are taken from these sources. 2. Fredrik Ljone and Håkon Wium Lie are not to transfer or contribute to the transfer of judicial rulings, summaries and relevant data as mentioned in item 1 to third parties, and are not publish or contribute to the publishing of the same in any manner on any digital platform. 3. Fredrik Ljone and Håkon Wium Lie are, in addition to deleting material under item 1, to delete summaries of Supreme Court rulings taken from Lovdata’s databases, including a CD issued by Lovdata in 2002, to the extent it concerns summaries of rulings from 1945 or later. Fredrik Ljone and Håkon Wium Lie are not to transfer or contribute to the transfer of such summaries to others. Fredrik Ljone and Håkon Wium Lie are not to publish or contribute to the publishing of the same summaries in any manner on any digital platform. 4. In connection with deletion as ordered in item 1, Fredrik Ljone and Håkon Wium Lie may mirror the data on a storage medium to be handed to Lovdata for safekeeping. The mirroring must be carried out together with a representative from Lovdata or an enforcement officer, who will bring the relevant storage medium to Lovdata for safekeeping until it is clarified by means of agreement or judgment that the data must be deleted or returned. 5. The obligation to delete the summaries of the rulings covered exclusively by item 3 must be fulfilled before publication of the individual judicial ruling, but no later than 1 month after the service of this order. 6. Fredrik Ljone and Håkon Wium Lie jointly are to pay costs of NOK 370 000 to Lovdata within two weeks of the service of this order.