Two recent rulings handed down in Spain have reached opposite conclusions on the much debated question of whether or not linking to copyright infringing content amounts to an act of communication to the public, and thus can be characterized as a primary infringement.
Both rulings come from criminal courts. In the first one, the case of mejortorrent.com and multiestrenos.com, the court held that linking to files located in P2P networks does not constitute a communication to the public, being instead a merely intermediary act (see Auto del Juzgado de Instrucción número 4 de Bilbao, August 30, 2013). The court notes that, in addition, the safe harbors laid down in the Spanish Information Society Services Act would apply.
In contrast, in a more recent ruling, the case of bajatetodo.com, another criminal court found that the website operator did engage in a communication to the public when providing links to infringing content hosted in P2P networks (see judgment 453/13 Juzgado de lo penal número 4 de Castellón, October 30, 2013). The court rejected the claim that the activity is sheltered by the linking safe harbor of the Spanish law. As a result, the website operator was sentenced to 18 months of prison (which most likely will not be effective, as is usual in sentences below 2 years) plus a fine. In addition, damages were awarded to the right owners who brought the action.
These rulings show how the issue is still debated in Spain. While most of the rulings in Spain have reached the conclusion that websites providing links to infringing material do not realize an act of communication to the public, some others have come to the opposite result. This debate has taken place for the most part in criminal procedures brought by right owners (a list of cases can be found here, in Spanish).
Of course, this is by no means just a domestic debate. Some references for a preliminary ruling which address directly this question are pending before the CJUE (see cases C-466/12, Svensson; C-279/13, C More Entertainment AB), and different opinions have been put forward by entities such as ALAI and the European Copyright Society.