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2.08.19

Court refuses routine NPO disclosure application due to lack of “genuine intention”

In Mircom International and Golden Eye International v Virgin Media and Persons Unknown [2019] EWHC 1827 (Ch) the High Court declined to order Virgin Media to hand over the IP addresses of persons who had allegedly downloaded and shared pornographic films in breach of copyright.

The internet and broadband provider resisted the application of Mircom and Golden Eye for a Norwich Pharmacal Order requiring the Internet Service Provider (‘ISP’) to release details of the registered owners of certain IP addresses, identified by the Claimant as the alleged infringers.

Background

Mircom and Golden Eye provide services on behalf of copyright holders (in this case the makers of the pornographic films) to track down people who have allegedly been downloading their material unlawfully and to send them letters containing limited details about their alleged infringement and encouraging them to reach a settlement. People who refuse may be threatened with court action, although such action almost never occurs and those cases that have been attempted in the past have ultimately been unsuccessful due to weak evidence.

To identify those infringing the copyrighted material, Mircom and Golden Eye routinely apply to the Court to order ISPs to provide the relevant information.

However, the reliance on fallible IP address based evidence to identify the person suspected of infringement, is speculative. The letters demanding payment target the bill payer for the broadband service, not considering that the service can often be shared between friends, family, visitors and users of local WiFi networks.

The Court’s approach

Though in the past, Golden Eye has been successful in their applications (see, Golden Eye (International) Ltd v Telefónica UK Ltd (Open Rights Group intervening) [2012] EWCA Civ 1740) on this occasion, the Court was not prepared to take the same view.

The Court considered that the evidence in support of the NPO application was deficient: referring to missing exhibits, issues with the dates of exhibits and the witness statements and flaws in the the expert’s report and the statement of truth. Virgin Media also argued that the licence agreement between the productions companies and Golden Eye did not confer Golden Eye the right to sue in its own name.  The Court held that the fact that Golden Eye did not have title to sue in their own name was no bar to claims being brought by the other Claimants and although Virgin was correct the claim would could still be brought.

The "Genuine intention" point

In addition, Virgin’s central point of contention was that the Applicants did not genuinely intend to sue anyone. Instead Virgin alleged that the Applicants were part of a “money-making scheme” or “shakedown”, and that they intended to “continue to ride the ‘gravy train’ of letter-writing in the absence of court supervision” (para 54).

To verify the Claimant’s genuine intent to infringe their intellectual property, the Court turned to look at how Mircom and Golden Eye had used previous NPOs they had been granted. This revealed that that Mircom had previously sent letters to 749 Virgin Media customers as a result of another NPO back in 2014, which resulted in 76 people making confessions of liability and just 15 choosing to settle the claim without admission of liability. But no court proceedings had ever been issued.

Oddly, 658 people did not reach a compromise, but nobody was sued.  This evidence, submitted by Virgin, supported the claim that the Claimants did not have genuine intention to sue anyone, but simply wanted money. NPOs are typically used to identify a proper defendant to a claim or to obtain information to enable someone to set out their case in Court documents. Being granted such relief without utilising the data disclosed, can be viewed as an abuse of the process because privacy and data protection rights of the people identified are invaded without a genuine interest to sue the alleged wrongdoers.

On this crucial evidential issue, the Court concluded as follows (paras 59-60):

“I accept the Applicants’ submission that they cannot be expected to sue everyone and that it is not necessarily abusive for them to seek a sum by way of settlement which is higher than that which would be awarded by a Court. However I do accept Virgin’s submission that in order to perform the difficult and delicate balancing exercise which the law requires, I do at least need to consider whether the Applicants still have a genuine intention to try to obtain redress for the infringement rather than merely setting up a money-making scheme designed to embarrass and coerce as many people as possible (regardless of whether they were actual infringers) into making the payments demanded. I also accept Virgin’s submission that in order to consider this question, I need to know how the Applicants have actually used the information provided to them under previous Court orders, now going back a number of years…”

It could be called into question whether it was a deliberate tactic of Mircom aimed to cause potential embarrassment to pressure people into paying the sums demanded due to the nature of the material in question.

Mircom and Golden Eye did not succeed in disproving the “shakedown” claims, and the Court refused the application.

The recent High Court case of FCFM Group Ltd v Hargreaves Lansdown Asset Management Ltd, Interactive Investor Services Limited and EE Limited [2018] EWHC 3075 (QB) shows that the Court is quite ready and willing to limit and scrutinise applications for NPOs to protect against the unnecessary disclosure of private documents. In the case of Mircom and Golden Eye, the Court has showed how the conduct of the parties, and their respect of the dominant purpose for which this relief is granted is taken into consideration when evaluating the merits of an application.

 

Brett Wilson LLP solicitors specialise in seeking Norwich Pharmacal Orders to identify prospective defendants in defamation, privacy and harassment matters.  Click here for more information.


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