The High Court has ruled that Golden Eye, acting on behalf of pornographic film producer Ben Dover, can use the names and addresses of O2 customers to pursue claims of copyright infringement. Consumer Focus is highlighting today that 2,845 people are now likely to be sent claim letters by Golden Eye. The company originally wanted to target over 9,000 households.1
Consumers will receive these letters in the next few months, from August onwards at the earliest. Consumer Focus wants to raise awareness of the help available to those who receive the letters and who want to either challenge the allegations against them, or settle a claim with Golden Eye out of court.
Most consumers won’t have the legal knowledge to be able to respond effectively to these letters or be able to afford specialist advice on copyright infringement claims. Consumer Focus is concerned that without independent advice, innocent consumers could feel compelled to settle, or that consumers who have infringed copyright may feel pressured into paying a sum disproportionate to the offence. Consumer Focus and Citizens Advice are therefore working together to ensure effective advice is available for consumers, from the Citizens Advice Consumer Service (08454 04 05 06) or their local Citizens Advice Bureau.
Consumer Focus has welcomed the Court’s decision that Golden Eye’s claim letters must be reasonable and make people, who may want to contest these claims, aware of the help that is available to them from Citizens Advice. Golden Eye had previously planned to send ‘pay-up or else’ letters to consumers, that were misleading and deemed by the High Court to be ‘objectionable in a number of respects’. Amongst other issues the letters wrongly asserted that bill payers are liable for any copyright infringement that may have occurred on their internet connection2, and the Court found that the £700 Golden Eye planned to demand from O2 customers was ‘unsupportable’.
Mike O’Connor, Chief Executive of Consumer Focus said:
‘We do not condone copyright infringement, but innocent people should not feel bullied into settling claims and they must be made aware of where to go for help.
‘We intervened in this case3 to make sure that consumers are treated fairly. People will not have ready access to the sort of specialised legal advice necessary to respond to allegations of copyright infringement. That is why we are working with the Citizens Advice service to provide clear advice to consumers about what to do if they are accused of copyright infringement.
‘We have also written to all the major Internet Service Providers and online hosts who may be required to assist copyright owners to enforce their rights.4 We are urging them to be rigorous in protecting their customers’ personal data– to help make sure the rights of consumers and copyright owners are fairly balanced.’
ISPs and online hosts can only hand over the personal data of their customers to third parties, if a Court has made a disclosure order. Consumer Focus would expect any ISP or online host which is subject to an application for a disclosure order to:
- Ensure that the application is supported by appropriate and consistent evidence of possible wrongdoing by customers, and that any personal data requested is necessary for pursuing the individual(s) suspected of illegal activity
- Ensure that the order contains adequate safeguards, so that the use of customers’ data, once passed on, complies with data protection laws
- Review whether letters which are to be sent to customers accusing them of illegal activity are misleading or likely to cause distress
- Explain to customers and users under what circumstances their personal data may be disclosed to assist with law enforcement
- Provide effective customer service through appropriately trained staff, to help customers enquiring about any data released or concerns about mistakes in the data-matching
- Consider notifying customers of requests for personal data – unless prohibited to do so
- Consider publishing an annual report on the number of applications made and the number of court orders complied with – to provide transparency to customers
Notes to editors:
- The Citizens Advice consumer service provides free, confidential and impartial advice on consumer issues. You can call the Citizens Advice consumer helpline on 08454 04 05 06 or you can talk to a Welsh-speaking adviser on 08454 04 05 05. The helplines are open Monday to Friday 9.00am to 5.00pm.
- The High Court granted Golden Eye a Norwich Pharmacal Order in relation to the alleged copyright infringement of films by Ben Dover Productions. The Order was sealed on the 1 June 2012 and now compels O2 to provide the personal data, that is names and postal addresses, of 2,845 internet subscribers whose internet connection is alleged to have been used to infringe copyright by peer-to-peer file-sharing.
- In its 26 March decision the High Court clarified that Golden Eye could not claim that the bill payer is liable for any infringement on their internet connection. The High Court confirmed that in copyright law, the bill payer would only be liable for other people’s infringement if he/she explicitly authorised the copyright infringing act.
The liability of the bill payer for copyright infringement by others has been subject to uncertainty in the past. ACS:Law used this uncertainty to pressure bill payers into paying damages for infringements they had not committed. The clarification by the High Court is welcome. However Consumer Focus remains concerned that under the Digital Economy Act 2010, bill payers could be made liable for other people’s infringement. This is because the Act requires bill payers to show that they took “reasonable steps” to prevent others from infringing when they appeal an allegation of copyright infringement by a copyright owner.
- Golden Eye International Ltd and 13 producers of pornographic films sought a “Norwich Pharmacal Order” (NPO) against Telefonica UK, trading as O2. This would have forced O2 to hand over personal details of more than 9,000 internet subscribers. A NPO is a disclosure order which compels an innocent third party (such as an ISP) to provide information identifying an individual in relation to alleged unlawful conduct, so that legal action can be taken against the individual.
Golden Eye applied for a NPO against O2 in September 2011. O2 decided to not challenge the application, so the application was referred to the High Court. Consumer Focus intervened in the application on behalf of those consumers whose personal data would be released if the order was granted. Following a hearing, the High Court granted the disclosure order to Golden Eye and Ben Dover Productions, provided that changes were made to the order and the letters. The High Court declined to grant the order in relation to the other 12 film producers.
The High Court said that any letter of claim, which Golden Eye will send to O2 customers, must be framed properly to safeguard the legitimate interests of consumers, particular those who have not in fact committed the alleged copyright infringements. The High Court also requires that Golden Eye to individually negotiate the settlement sum with any consumer who admits that they have infringed copyright after requiring the consumer to disclose information about their Peer2Peer filesharing. The wording of Golden Eye’s claims letters was agreed with the High Court in a second hearing on the 31 May. At this hearing Consumer Focus asked the Court to insert information into the letters, telling consumers that they can get advice on how to respond to these letters from Citizens Advice. The disclosure order was sealed by the High Court on the 1 June 2012.
For further background on the first hearing and the High Court judgement from the 26 March please see Consumer Focus’s press release on the Court decision.
- Consumer Focus has written to the six largest UK consumer ISPs – BT, TalkTalk, Virgin Media, BSkyB, EverthingEverywhere and O2, as well as large UK online hosts - Facebook, Twitter, Yahoo and Google. For further information on disclosure orders please see Consumer Focus’s briefing.