1709 Blog: for all the copyright community

Tuesday, 27 March 2012

O2 to disclose details of porn downloaders

Yesterday the High Court of Justice (Chancery Division), England and Wales, ordered telecom company O2 to hand personal details of more than 9,000 broadband subscribers to Golden Eye International and pornography firm Ben Dover Productions, on account of the illicit download of porn films, reports The Telegraph.
The 152-paragraph decision of Arnold J followed an application by Golden Eye and thirteen other claimants for a Norwich Pharmacal Order (as first elaborated in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133) against O2, seeking to obtain disclosure of the names and addresses of O2 customers who are alleged to have committed infringements of copyright through peer-to-peer filesharing using the BitTorrent protocol. 
The applicants were divided into two groups.
The first group included Golden Eye and Ben Dover Productions. While the latter is the owner of the copyright in a series of pornographic films starring Ben Dover and which were released between 1995 and 2008, Golden Eye enjoys a royalty-free worldwide exclusive licence of all copyrights and rights in these films, as well as marketing a range of associated merchandise under the Ben Dover trade mark.
The second group of claimants are copyright holders in other pornographic films, who had entered into a 2-year licensing agreement with Golden Eye. 
Porn veteran Ben Dover
(copyright News Group Newspapers Ltd)
Golden Eye had previously applied and obtained similar orders against British Telecommunications in 2009, and BSkyB in 2010. It is worth recalling (para 103) that, from 2009, ISPs have been required by UK law to retain records of which customer was using which IP address at any particular time for a period of one year. So far, Golden Eye has only brought three claims for infringement arising out of information obtained by virtue of the 2009 and 2010 Norwich Pharmacal orders. All of them were issued in the Northampton County Court, in at least two cases using the Money Claim Online system (MCOL). According to Arnold J MCOL is unsuitable for copyright infringement claims and should not be used for that purpose. 
In the case of O2, Arnold J found that there was a prima facie case that each of the respective subscribers associated with the IP addresses provided by the claimants had illicitly copied one or more of each of the applicants’ works for the purpose of making them available via file-sharing websites for third parties to download. The claimants undertook to the Court that they have a genuine intention to pursue a claim against any of the subscribers with whom a compromise is not reached and where there is a legitimate and appropriate legal basis to do so. Accordingly, Arnold J ordered O2 to disclose "the name and postal address of the registered owner or owners of each of the internet account or accounts that were assigned to the internet protocol address".
In parallel to this, among the other things, Arnold J ordered Golden Eye to pay into an escrow account to be held by the respondent's solicitors a sum equal to £2.20 per IP address requested with £2500 security costs.
In no case, however, shall the applicants disclose to the general public, by making or issuing a statement to the media, the names or addresses of any person or persons whose identity is made known as a result of the grant of the relief ordered until after (1) the receiving the express consent of the person concerned, or (2) the applicants have commenced proceedings to enforce their copyright and related rights against such person or persons. 
A discreet notice will be sent to P2P file-sharers  
Of particular interest is the part of the judgment (paras 116 ff) which deals with the proportionality of the order sought by Golden Eye and the other applicants. In particular, Arnold J recalled that in Promusicae and Scarlet (and most recently in Netlog) the CJEU held that, when adopting measures to protect copyright owners against online infringement, national courts must strike a fair balance between the protection of intellectual property rights guaranteed by Article 17(2) of the Charter and the protection of the fundamental rights of individuals and, in particular, the rights safeguarded by Articles 7 [Respect for private and family life] and 8 [Protection of personal data]. This said, Arnold J held (para 117) that the correct approach to considering proportionality can be summarised as follows: 
"(i) neither Article [in the Charter] as such has precedence over the other; (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (iii) the justifications for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test – or 'ultimate balancing test' - must be applied to each.”
In this case the claimants were owners of copyrights which had been infringed on a substantial scale by individuals who engaged in P2P filesharing. Arnold J made it clear (para 145) that "[t]he mere fact that the copyright works are pornographic films is no reason to refuse the grant of relief, since there is no suggestion that they are obscene or otherwise unlawful." The only way in which the copyright owners could ascertain the identify of those individuals and seek compensation for past infringements would be by (i) obtaining disclosure of the names and addresses of the subscribers, (ii) writing letters of claim to them  seeking voluntary settlements and (iii) where it is cost-effective to do so, bringing proceedings for infringement.
Having observed that the grant of the order sought by the applicants would invade the privacy of O2 subscribers and impinge upon their data protection rights, Arnold J considered first the claim of Golden Eye and Ben Dover Productions. The judge found that these had a good arguable case that many of the relevant subscribers had infringed their copyrights. Therefore, as the claimants' interests in enforcing their copyrights outweigh O2 subscribers' interest in protecting their privacy and data protection rights, it was proportionate to order O2 to disclose its subscribers' personal details.
On the contrary, Arnold J rejected the claim of the other applicants, in that it would have not been appropriate, when balancing the competing interests, to make an order which endorsed an arrangement under which the other claimants surrendered total control of the litigation to Golden Eye. Such an order would have been tantamount to “the court sanctioning the sale of O2 subscribers' privacy and data protection rights to the highest bidder”. 

No comments: