On Tuesday Golden Eye International sent out the first batch of letters threatening court action for alleged copyright infringement via peer to peer filesharing networks. The allegations concern copyright infringement of various Ben Dover Productions films. The letter writing campaign concerns mainly O2 broadband customers, and some BE Broadband customers (both brands are owned by Telefonica UK).
Affected customers will have received a letter from O2 and BE in December last year, informing them that their personal data has been released to Golden Eye and Ben Dover Productions following a court order for disclosure. The High Court granted the court order on 26 March, Consumer Focus intervened on behalf of consumers.
Where to get advice?
If you have received a letter from Golden Eye threatening court action it is vital that you contact Citizens Advice for information on how to respond.
O2 and BE customers will have to respond to Golden Eye within 28 days from the date shown on the first page of the letter, top right hand corner.
The Citizens Advice consumer service provides free, confidential and impartial advice on consumer issues. Visit www.adviceguide.org.uk or call 08454 04 05 06 from 9am to 5pm Monday to Friday. Alternatively, visit your local Citizens Advice Bureau – you can find the details online at www.adviceguide.org.uk or under C in the phone book.
Are O2 and BE customers liable for the alleged infringement?
The High Court has recognised that the subscriber, that is the bill payer for an internet connection, may well not be the individual that has committed the alleged infringement. Most internet connections in the UK are shared, that is one person pays the bill and other people in the household use it as well. Golden Eye could only identify IP addresses relating to alleged infringement of Ben Dover Production films, which identify an internet connection, not a computer or the individual at the keyboard.
In order to safeguard the rights of subscribers who may well be innocent, the High Court sanctioned a so called letter before action, or pre-action letter, which Golden Eye is required to send out. However, regardless of whether O2 and BE customers are guilty of the alleged infringement, they need to respond to Golden Eye within 28 days, setting out whether they deny the allegation, or admit to copyright infringement.
Getting free, confidential and impartial advice
Getting advice on alleged copyright infringement is not easy, and the fees commonly charged by copyright lawyers are unaffordable for most consumers. Therefore Consumer Focus and Citizens Advice have worked together to establish detailed advice scripts for alleged copyright infringement. The legal system is devolved, therefore Citizens Advice has prepared suitable advice scripts for England and Wales, for Scotland and for Northern Ireland.
Citizens Advice provides advice free of charge, and will be able to advise O2 and BE customers who have received a letter from Golden Eye regardless of whether they are guilty or not. If it turns out that the copyright infringement was committed by a child in the household, Citizens Advice will be able to advise O2 and BE customers on possible courses of action.
The High Court recognised that the pornographic nature of Ben Dover Production films may cause embarrassment, and the threat of court action in relation to the alleged infringement may cause distress. O2 and BE customers should rest assured that Citizens Advice provides entirely confidential and impartial advice. Consumer Focus strongly recommends that O2 and BE customers who have received a letter from Golden Eye contact Citizens Advice.
Pay-up or else?
In the past letter writing campaigns designed to extract ‘compensation’ from internet subscribers for alleged copyright infringement have attracted significant criticism. Dubbed ‘speculative invoicing’, solicitors deliberately targeted innocent subscribers for ‘compensation’ which bore no relation to the alleged infringement.
Many consumers were vulnerable to these campaigns because legal advice on copyright is unaffordable for most and many consumers eventually paid hundreds of pounds to make the threat of court action go away. A number of solicitors were suspended by the Solicitors Regulation Authority (SRA) in relation to such letter writing campaigns.
However, in principle copyright owners have a right to take legal action against individuals they suspect of copyright infringement. If a consumer has admitted to copyright infringement then they are expected to engage in negotiations to settle the claim, to avoid unnecessary court action. But copyright owners do not have the right to extort compensation out of innocent consumers, or pressure guilty consumers into paying compensation that bears no relation to the copyright infringement committed.
So what has changed? Quite a lot:
- The High Court imposed a condition on Golden Eye, which is a limited company, to only send the letter before action that has been approved by the court
- The High Court ruled that Golden Eye cannot ask subscribers for £700 in compensation upfront, and must first establish the extent to which copyright infringement may have been committed
- The High Court ensured that the letter before action does not cause unnecessary distress, and does not leave the subscriber with the wrong impression that the court has already found them guilty, or that they are liable for any infringement on their Internet connection
- Citizens Advice is now able to provide free, confidential and impartial advice to consumers who have received a letter from Golden Eye threatening court action. This advice script includes:
Detailed advice on what to do if subscribers deny or accept the allegation
Advice on what to do if someone else in the household has committed the alleged infringement, including in cases where children have committed the infringement
Detailed advice for those who admit to the infringement on how to calculate and negotiate an appropriate settlement sum
Advice for consumers who feel they are subject to unfair commercial practices, that is misleading or aggressive practices, and help with making a complaint to Trading Standards through the Citizens Advice consumer service
What happens if consumers are taken to court for copyright infringement?
Copyright infringement by consumers would typically be what is known as a ‘small claim’. In England and Wales, until recently, copyright infringement disputes could not be heard in the small claims track of ordinary County Courts, and many low value copyright infringement disputes were brought in the High Court. In practice this meant consumers could not afford to defend themselves.
However, at the end of last year the Patents County Court, a special court for intellectual property disputes of up to half a million pounds in value, launched a small claims track specifically designed for copyright infringement disputes of up to £5,000 in value.
The new small claims track in front of a specialist judge is a significant improvement for consumers in England and Wales. If a case goes to the small claims track consumers will be in a position to defend themselves without a lawyer. Ultimately it is for Golden Eye to proof its allegation, though consumers should be aware that the so called Pre-Action Protocol requires them to engage in settlement negotiations if they have committed the infringement. If it is not possible to negotiate a reasonable settlement sum, the court will determine appropriate damages.
In Scotland and Northern Ireland
Consumers in Scotland and Northern Ireland are not subject to the Pre-Action Protocol, though there is nevertheless an expectation that consumers who have infringed copyright should make an attempt to settle the claim out of court. In Scotland and Northern Ireland copyright infringement disputes of up to £3,000 in value will be dealt with as small claim. If a settlement sum cannot be agreed out of court, the claim will be heard by the Sheriff Court in Scotland and the Small Claims Court in Northern Ireland.
If Scottish and Northern Irish consumers find that Golden Eye is bringing claims against them in the small claims track of the Patents County Court (for England and Wales), they should contact their local Citizens Advice bureau immediately for information on how to mount a jurisdiction challenge.
Consumers should bear in mind that for small claims the cost that can be recovered by the winning party is severely limited. Thus consumers should not feel that they need to settle for a sum that is disproportionate to the infringement committed in order to avoid the costs of going to court. Citizens Advice will be able to assist consumers who are threatened with court action, or are being taken to court.