Wednesday 9 February 2011

Mass file-sharing claims - the Norwich Pharmacal fallout begins

A significant step towards changes in the practice governing mass identity disclosure orders in copyright infringement cases has been taken with His Honour Judge Birss QC's judgment in Media Cat Ltd v Adams, a P2P filesharing case, published on 8 February 2011. 

The judgment in substance concerned an unsuccessful attempt by Media Cat to discontinue copyright infringement proceedings against 27 defendants whose internet connections Media Cat claimed had been used for P2P copyright infringement.  After the hearing the court was informed that Media Cat had ceased trading due to insolvency and that its lawyers, ACS Law, were closing permanently on 31 January 2011.  

In the course of his judgment Judge Birss commented on some broader issues surrounding the "Norwich Pharmacal" procedure.  Media Cat used this procedure to obtain court orders against ISPs requiring them to disclose the identities of its customers corresponding to the internet protocol (IP) addresses via which Media Cat believed that unlawful filesharing had taken place. 

The weakness of the Norwich Pharmacal procedure is that the only parties usually present at the hearing are the rightsowner applicant and the judge hearing the application.  The ISP may be present if it chooses, but does not have to be.  The person apart from the rightsowner with a real interest in the application - the customer whose identity will be disclosed - is normally unaware that the application is taking place. 

Judge Birss commented, after explaining the importance of Norwich Pharmacal orders:
"Nevertheless there is a potential difficulty with the Norwich Pharmacal process which is put in focus by the cases before me.  The respondent to the Norwich Pharmacal application for disclosure - while obviously wishing to ensure that an order is not made when it would be inappropriate to do so - has no direct interest in the underlying cause of action relied on." 
This echoes comments made some years ago by Aldous LJ in Totalise v Motley Fool (see here):
“It is difficult to see how the court can carry out this task if what it is refereeing is a contest between two parties, neither of whom is the person most concerned, the data subject; one of whom is the data subject's prospective antagonist; and the other of whom knows the data subject's identity, has undertaken to keep it confidential so far as the law permits, and would like to get out of the cross-fire as rapidly and as cheaply as possible.”

Judge Birss went on to comment:
"in my judgment when a Norwich Pharmacal order is sought of the kind made in this case, it may well be worth considering how to manage the subsequent use of the identities disclosed.  Perhaps consideration should be given to making a Group Litigation Order under CPR Part 19 from the outset and providing a mechanism for identifying test cases at an early stage before a letter writing campaign begins.  ... Perhaps a court asked for a Norwich Pharmacal order of the kind made here should consider some similar form of supervision [to that in a search and seize order] from an experienced neutral solicitor."
My previous post on this topic suggested some other possible safeguards: that a technical assessor might sit with the judge hearing the application for disclosure of identities; and that the customers whose identities stood to be disclosed might be notified of the application and permitted to make anonymous representations to the court hearing the application.  Whatever the measures adopted, we may now seeing the beginning of a move towards introducing greater safeguards, at least in mass application cases.