The Pirate Bay Trial - Bias Allegations

Bias Allegations

In mid 2008 after the indictment had been served, it was discovered that the main police investigator in the preliminary investigation had started working for one of the plaintiffs, Warner Brothers, before the date of the indictment. Sunde's lawyer Peter Althin questioned the neutrality and reliability of the preliminary investigation in the event that the investigator had entered the new employment during the investigation, and suspected the job might have been a reward for good work in The Pirate Bay investigation. Althin believed that the investigation might have to be redone if that was the case. The prosecutor Håkan Roswall responded that it wouldn't have posed problems for the investigation because the police were working under his directive, and the investigator's superior officer brushed off the incident as nothing remarkable. Warner Brothers commented merely that the investigator hadn't received any compensation during the time he worked for the Swedish police. According to Roswall, this type of concurrent employment would not be an individual incident, but that the decision of possible bias would be for the court to decide, and that the investigator is not a key witness in the case. The investigator could not be reached during the trial and was taken off the witness list.

Only days before the trial began, one of the three appointed lay judges was discovered to be a member of a composers' association that among others works on protecting copyright. After discussing with judge Tomas Norström (judge) the problem the membership could pose to the trial, the composer recused himself from acting as a lay judge in the case and he was replaced with another.

In the aftermath of the trial, presiding judge Tomas Norström, the same judge that ordered the 2006 raid on The Pirate Bay's servers, came under scrutiny after allegations of bias. Sveriges Radio P3 News organized an investigation that found on April 23 that Norström had several engagements with organisations interested in intellectual property issues. Peter Danowsky, Monique Wadsted and Henrik Pontén from the prosecution side are also members of one of the organisations, the Swedish Copyright Association (SFU). Wadsted commented that all intellectual property lawyers in Stockholm are part of the association. According to Norström, the organisations are involved in discussion about copyright, while the earlier lay judges's organisation advocates further copyright protection. Norström however also sits in the board of the Swedish Association for the Protection of Industrial Property, which along with the SFU are the Swedish branches of International Association for the Protection of Industrial Property (AIPPI) and Association littéraire et artistique internationale (ALAI). AIPPI's website states that "the objective of AIPPI is to improve and promote the protection of intellectual property on both an international and national basis", and ALAI's president Victor Nabhan commented that his organisation is dedicated mostly to defending copyright holders' interests. Several legal experts have commented that the judge should not have taken the case because of the potential conflict of interest or should at least have mentioned it in the beginning of the trial, and that there are grounds for a retrial. The district court itself however defended judges' membership in these types of organisations, and it is not uncommon for lay judges to even be sitting municipal politicians.

Following the discovery on April 23, Peter Sunde's lawyer Peter Althin announced that he would request for a retrial. The Swedish Parliamentary Ombudsman decided not to investigate the bias since the question had already been requested to be taken up in the Svea Court of Appeal. The court of appeal received the case on May 18 and assigned it to judge Ulrika Ihrfelt. On the question of bias, Ihrfelt stated she was a member of the Swedish Copyright Association in 2005 when working in the supreme court, but didn't consider herself biased because of this. The president of the court was requested to reassign the case, and on May 20 it was reassigned to three judges from another court of appeal department. The district court along with the prosecutor formally defended judges' memberships in these types of organisations as a way to gain knowledge on copyright issues. The court of appeal considered it a priority case, and ruled on June 25 that the judge's memberships do not constitute bias and that there would be no retrial in the district court.

During the preparation for the appeal trial, bias allegations were also made on the court of appeal. In Swedish appeal proceedings for criminal cases where the sentence is greater than a fine, the court usually consists of three professional judges and two lay judges. Judge Ihrfelt, again appointed to the case, informed the parties in mid September 2009 that one of the appointed lay judges is working for the music streaming service Spotify, which is partly owned by record companies. The lay judge himself didn't feel biased because of his work, but prosecuting attorney Danowsky commented that anyone both judging the case and working for Spotify has a conflict of interest. Later on the same week, defense attorney Samuelsson submitted allegations to the appeal court of Ihrfelt and another professional judge being biased for their membership in the same interest groups judge Norström was investigated for. In the court's opinion, the judges' memberships did not constitute bias, whereas the lay judges's impartiality was questionable and he was dismissed. The court's decision was appealed, and in May 2010 the supreme court affirmed the appeal court's decision on the bias question.