Scant regard for the principles of data protection and the protection of private information appears to be being paid in the current war being waged between internet file-sharers and copyright enforcers.

We appear to be at a critical point in this most topical saga, both legal and practical. The last few days have seen reports of all of the following: an expression of concern from the court over the use being made by copyright owners of Norwich Pharmacal Orders against Internet Service Providers to identify potential file–sharers; a concerted cyber attack mounted against the computer servers of ACS Law, a solicitors’ firm notorious for its mass pursuit of alleged copyright infringing internet file-sharers; the leaking from ACS Law’s servers of the identities and sensitive personal data of ISP subscribers whose IP addresses had allegedly been identified as having been used to download copyrighted material (including pornography); the exposure of the fact that one of the ISPs had disclosed its subscribers’ personal data to that law firm under court order without first encrypting it; the reporting that this data was, allegedly, kept unencrypted; the dissemination of that data and the law firm’s financial and other records revealing the fundamentals of its controversial copyright enforcement processes; and the commencement of the appeal in Sweden of the defendants connected with Pirate Bay, the prominent file–sharing enabling web-site.

What is more, a decision of the Administrative Court is expected imminently on the application of 2 ISPs for permission to judicially review the provisions of the Digital Economy Act 2010 governing online infringement of copyright (sections 3 to 18) in R, on the application of British Telecommunications Plc and Talktalk Telecom Group Plc –v-The Secretary Of State For Business, Innovation And Skills.

Those provisions of the Digital Economy Act were intended to bring an element of regulation into this present “Wild West”. Although the Act received Royal Assent on 8 April 2010, it was only debated, as a Bill, at a brief committee stage during the “wash up” period after the announcement of the general election.  Its provisions contemplate that those whose internet connections are used for repeated file-sharing of copyright material will be disallowed access to the internet by their ISP.  On 27 September 2010, the inventor of the internet, Sir Tim Berners-Lee likened being forced offline in this way to ‘imprisonment’ and attacked the Digital Economy Act’s lack of ‘due process’ as contrary to the Magna Carta.  High time then, to take stock.

File-sharing software (such as BitTorrent) enables internet users to share files and material stored on each other’s computers when they are connected to the internet. The software has many legitimate uses but it is also employed to upload and share digital media in breach of copyright protection. The software is available on the internet at file-sharing sites such as Pirate Bay. Internet monitoring technology cannot specifically identify those who engage in uploading and downloading files for unlawful sharing. The nearest it gets is the identification of the internet protocol address utilised by a file-sharer. This IP address belongs to the person who subscribes for the broadband internet connection which is utilised in the file-sharing. The IP address identifies the ISP and can be used by the ISP itself to identify its subscriber. 

Obviously, however, the internet connection may not be in the sole use of the subscriber himself and the subscriber may not be the file-sharer. A local wireless network may utilise the  internet connection and if the network is unsecured  access can be gained to the connection by anyone. Internet connections are also reported to be susceptible to hacking by serial file-sharers.

Copyright owners use monitoring agents to go on to the internet and search for their material to identify unauthorised sources, that is uploaders. The monitoring agents download the copyrighted material from such sources and thereby identify the IP address of the uploader. (According to the file-sharers, there are unscrupulous monitoring agents linked to copyright enforcers who incite unlawful downloading by themselves uploading the material so as to catch downloaders, and incompetent monitoring agents who misinterpret data and wrongly identify IP addresses as being involved in copyright infringement).

Armed with the IP addresses identified by the monitoring agents, law firms such as ACS Law and Gallant McMillan make applications in the Chancery Division for Norwich Pharmacal Orders against the ISPs requiring the ISPs as persons mixed-up in the wrongdoing of others to identify the names and addresses of the subscribers for the IP addresses used in the file sharing.  Most ISPs do not oppose the making of the Orders sought.  It is said that ISPs who have expressed an intention to oppose such Orders are never made respondents to avoid opposition being mounted. The court cannot gainsay the evidence of the monitoring agents on these applications; it does not have the requisite technical understanding. The Orders are therefore made without challenge. In response to the Orders, the ISPs disclose the identities and physical addresses of the subscribers.  As the identities of hundreds or even thousands are sought at one time, the court tends to order the ISP to disclose them by sending an encrypted disk. Some of the private information that recently leaked from ACS Law appears to have included BT PlusNet subscriber identities and addresses which BT PlusNet had allegedly disclosed to ACS Law pursuant to one such court order without putting it into encrypted form.

The law firms then make mass mailings of standard letters before action to the identified subscribers alleging copyright infringement and demanding the payment of damages under threat of legal action. ACS Law had written such letters to Sky subscribers whose connections had allegedly been used to view pornographic material. There are at least 3 aspects of these types of letters which are controversial. First, the demand is made of the subscriber even though he may not have been the file-sharer or have known of the file-sharing activity. There is no proof available at the time of sending the letters that the subscriber was the person who used the broadband connection to access the copyright material. Second, the threat of legal action which is used to require payment is not a real one: actions are not, in practice, being brought. Third, the sums demanded in compensation are said to be disproportionate to any possible loss suffered by the copyright holders.

There is much internet space given over to recipients of such letters complaining of the distress they cause to them and their families. Some of the private information belonging to ACS Law recently leaked and disseminated shows that a substantial sum of money has been collected from those recipients of these letters who pay up. The so called compensation was  shared between the copyright holders, the monitoring agents and the law firm. Some subscribers who paid up by credit card have had their credit card details, allegedly kept on ACS’ server, disseminated. Some subscribers did not respond to the letters. Others challenged the allegations (some using standard form defence material available on the internet). Some recipients of the letters claim they are the innocent victims of harassment. Another law firm is reportedly now preparing a group harassment action against ACS Law. ACS Law is already the subject of investigation by the SRA and now the Information Commissioner. 

It is reported that, on 20 September 2010, at the hearing of a Norwich Pharmacal application made by Gallant McMillan on behalf of Ministry of Sound in Ministry of Sound Recordings Ltd v Plusnet Plc, Chancery Master Winegarten expressed provisional concerns that the process followed after the making of these orders was leading to mis-accusations and that whilst thousands of letters before action were being despatched to internet subscribers, no-one was being sued.

In order to obtain Norwich Pharmacal relief, it is not necessary to undertake to bring an action only to show that no action could be brought without the information sought. The relief is available if the interests of justice require it even where at the time of the application, without  the disclosure, the applicant cannot yet establish that the source has committed the wrong suspected: P-v-T Ltd [1997] 1 WLR 1309.

Master Winegarten reportedly stated the view that the Digital Economy Act would shortly change the present unsatisfactory landscape. What will the new DEA landscape look like?   

Section 3 of the DEA 2010 inserts a new section 124A into the Communications Act 2003 and applies if it appears to a copyright owner that a subscriber to an internet access service has infringed the owner‘s copyright by means of the service; or has allowed another person to use the service, and that other person has infringed the owner‘s copyright by means of the service. It provides for the owner to make a copyright infringement report to the internet service provider who provided the internet access service. A copyright infringement report is a report that states that there appears to have been an infringement of the owner‘s copyright; includes a description of the apparent infringement and evidence of the apparent infringement that shows the subscriber‘s IP address and the time at which the evidence was gathered.

The internet service provider who receives the copyright infringement report must notify the subscriber of the report and include a statement that the notification is sent under this section in response to a copyright infringement report; the name of the copyright owner who made the report;  a description of the apparent infringement; evidence of the apparent infringement that shows the subscriber‘s IP address and the time at which the evidence was gathered;  information about subscriber appeals and the grounds on which they may be made; and advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use.

The ISP may (under an initial obligations code to be promulgated by Ofcom) also be required to state that information about the apparent infringement may be kept by the internet service provider; that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber; and that following such a disclosure, the copyright owner may apply to a court to learn the subscriber‘s identity and may bring proceedings against the subscriber for copyright infringement.

The new s.124B provides that an internet service provider must provide a copyright owner with a copyright infringement list for each subscriber for whom there are multiple (amount yet to be defined) copyright infringement reports made by the owner to the provider.

The new s.124G permits the Secretary of State to direct Ofcom to assess whether one or more technical obligations should be imposed on internet service providers to take a technical measure (limiting the speed of the broadband service provided or limiting access) against subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet.

Section 124K provides for subscriber appeals. A non-exhaustive list of grounds of appeal includes: that the apparent infringement to which the report relates was not an infringement of copyright; and that the report does not relate to the subscriber’s IP address at the time of the apparent infringement. Section 124K(5) provides that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that the apparent infringement was an infringement of copyright, and  the report relates to the subscriber’s IP address at the time of that infringement. Section 124K(6) provides that the appeal must be determined in favour of the subscriber if the subscriber shows that the act constituting the apparent infringement to which the report relates was not done by the subscriber, and the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.

2 things are clear: the subscriber will be held to account for any misuse of the internet connection through his IP address and the onus will be on him to appeal and prove that he was not the file-sharer and took adequate steps to prevent his internet connection from being used for copyright infringing file-sharing.

By their judicial review application, BT and TalkTalk contend that the provisions of the DEA represent a disproportionate response to concerns over unlawful peer-to-peer file sharing and are likely to have a significant impact on internet users, many of whom are likely to be wholly unconnected with any form of digital piracy on a commercial scale and that the requirements imposed by the DEA 2010 raise very serious concerns about the impact on the privacy of internet users and the confidentiality expected by subscribers in their dealings with ISPs.

Naturally, the main focus of the ISP’s JR application is the requirement the DEA 2010 places on ISPs set up and administer costly schemes in relation to the internet use of their subscribers, to amend substantially their existing data processing practices and to incur potential liability to their subscribers as a result of their actions. BT and TalkTalk state that they are disconcerted at the prospect of their being required to discharge an enforcement function on behalf of copyright owners in circumstances where no, or no adequate, provision has been made for the costs of doing so.