23 May 2022
The Supreme Court rules for the first time on the crime of misappropriation of an internet domain. The Criminal Division of the Supreme Court, in Ruling 358/2022, handed down on 7 April, acquitted four members of a religious association who had been convicted of misappropriation and ordered to pay a fine of 720 euros each after being accused of having appropriated the association’s domain name.
The four defendants belonged to the religious association ‘Alfa Education for Integral Health’, created in 2010, whose purpose was to disseminate the content of the Adventist Church through the media. For that purpose they created a website, with the internet domain www.alfatelevisión.org, and opened bank and Paypal accounts, so that followers could make donations. They also registered the Alfa Television brand.
Due to the discrepancies that arose in the association of which the defendants were still members, four years later they created a new association, registered another trademark, changed the passwords to access the Paypal account and the internet domain to block access to the URL to the general secretary of the original association, who was the one who denounced the facts, and redirected all donors to a new domain created by the defendants. They were subsequently dismissed by the Board of the original association.
The Criminal Division of the Supreme Court upheld the appeal lodged by the four defendants against the Guadalajara Provincial Court’s ruling that convicted them of misappropriation and ordered them to pay a fine, on the grounds that the internet domain should be considered as an asset of the company-association and, consequently, susceptible to misappropriation.
The High Court considers that the appellants’ conduct does not amount to the offence of misappropriation because all their actions took place while they were still members of the association “Alfa Educación para una Salud Integral”.
Furthermore, the Supreme Court understands that the criminal type of article 253 of the Criminal Code requires the concurrence of other elements of the offence that are not detected in this case. ‘Even if we were to interpret the material object of the crime of misappropriation with maximum flexibility, understanding that the suppression of the expression ‘patrimonial asset’ does not imply a restriction of the portion of the crime covered by the new article 253 of the Criminal Code, it is indispensable that this object of economic value has been received in ‘…deposit, commission or custody, or that it has been entrusted to them by virtue of any other title that produces the obligation to deliver or return them’.
The judgment states that ‘the proven facts, however, say nothing of this. On the contrary, they state that the creation of the Alfa Salud Total association, the registration of the Alfa TV brand in the name of this company, the change of password for access to the Alfa Televisión Paypal account and the replacement of the initially associated email address with that of (…) all occurred prior to 2 June 2014, the date on which the four defendants were dismissed by agreement of the Board of Alfa Educación para una Salud Integral. In other words, according to the proven fact, ‘…by order of the president of that association with the knowledge and consent of the other two defendants’.
The Chamber concludes that ‘it is wrong to speak of a misappropriation of the domain name when it is the owners of the domain name themselves who, in the exercise of the functions they held until then in the association, took the actions to prevent L.L. – secretary general of the same association – from accessing the URL and thus redirecting all donors to a new domain already created by the defendants. All the actions imputed in the factum and which would have led to the misappropriation of the domain name were carried out prior to their formal termination as members of the association Alfa Educación para una Salud Integral, which occurred by agreement of the Board on 2 June 2014’.
You can download the Judgment here below:
