(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Andreas Bawer was accused in 2005 of sharing a film, called Hip Hip Hora, breaching the Swedish Penal Code. He was found guilty in the Swedish Court of First Instance, (Västmanlands Tingrätt) in December 2005. However, in a recent decision on 2 October 2006 of the Swedish Appeal Court (Svea Hovrätt) he was acquitted, the court identifying several faults in the digital evidences presented.

Bawer, having allegedly shared film files, could, in accordance with the Swedish penal code, be sentenced for criminal liability on condition it was proven beyond reasonable doubt that the IP address used for file sharing was assigned to the computer Bawer owned or used, and that the court could not rule out others had used the said computer at the time of the alleged file sharing. The legal question in issue was whether there was sufficient evidence of probability that Bawer had shared a film file Hip Hip Hora.

In Swedish law, the prosecuting authority has the burden of proof both for the subjective and objective conditions for criminal liability, and only evidence proven before the court make up the basis for the court´s assessment and judgement. In the Bawer-case the prosecuting authority contended the IP address was connected to Bawer´s computer. The evidence was a record made by the Swedish Antipiratbyrån (Swedish Antipiracybureau) of Bawer´s file sharing. Antipiratbyrån had access to a file sharing service named Walhall through which it made a search for the film Hip Hip Hora which allegedly was made available by Bawer. Antipiratbyrån requested to download the film from Bawer using the file-sharing service Walhall, through which a download was performed. With the control program CommView, the Antipiratbyrån recorded the traffic data between the computer of Antipiratbyrån and Bawer's computer.

Expert witnesses proved several faults with the record of the traffic data carried out by the Antipiratbyrån through its use of the control program CommView. First, the recorded IP address could have belonged to a router or a firewall, which in turn, could have assigned the IP address to the culprit to use for filesharing. Second, the control program CommView monitored simultaneously file sharing carried out with different IPaddresses, whereas only one filesharing was recorded without any description of how the evidence was secured. Third, the record of the file sharing did not show a transcript of the time zone used for the record. Fourth, the record of the file sharing did not show a transcript of the date and time for the file sharing allegedly committed by Bawer. Fifth, the programs used to define the time of the record on the CD/DVD made by the Antipiratbyrån showed discrepancies. Hence, the Swedish Appeal Court could not prove beyond reasonable doubt that the film file was shared from Bawer's computer. Consequently, Bawer was acquitted.

The judgement shows the difficulties in proving with sufficient probability who acted, from where and at what time. The problems of digital evidence are complex and of a heterogeneous character. Electronic evidence, such as traffic, location and time data, can originate, be scattered and end on different formats and different coordinates in time and space, and may easily be manipulated and hard to identify, due to services offering anonymity or pseudonymity.

Court citation- Judgement - Svea Hovrätt (Swedish Appeal Court)(in Swedish only, 2.10.2006)
http://www.domstol.se/default____966.aspx

File Sharer acquitted (in Swedish only, 3.10.2006)
http://www.aftonbladet.se/vss/rss/story/0,2789,898480,00.html

Freedom of actions for file sharers ? ( in Norvegian only, 5.10.2006)
http://forbruker.no/digital/nyheter/data/article1480842.ece

(Contribution by Georg Philip Krog, doctoral researcher in Private International Law, University of Oslo - Norway)