Golden Eye (International) Ltd & Anor v Telefonica UK Ltd [2012] EWHC 723 (Ch)

“We are the First Applicant and act for the Second – Fourteenth Applicants in this application. … It may be somewhat unusual for the Applicants to apply on their account. However, there has recently been a certain amount of publicity associated with this type of claim (ACS Law; Davenport Lyons). We therefore believe that we will be best served acting for ourselves.”

“The works in question are certain films created by a number of entities, both natural and corporate. The copyright in these works is owned by the Second to Fourteenth Applicants. [Golden Eye] has entered into a number of agreements which have the effect, inter alia, of allowing [Golden Eye] to bring a claim for breach of copyright on behalf of the Second to Fourteenth Applicants. Copies of the licence agreements are attached hereto as Exhibit 3…”

“[Golden Eye] has a right to bring this application on behalf of the Second to Fourteenth Applicants in its own name pursuant to section 101 of the Copyright Designs and Patents Act 1988.”

“As mentioned above, [Golden Eye] has subscribed to a service which can detect persons making its copyright films available for distribution. The persons responsible are identified by reference to the IP address assigned to them at the time that the film is being made available online.”

“The Applicants are willing to undertake to the Court that they have a genuine intention to pursue infringement actions against any subscribers disclosed to them by the Respondent pursuant to the order sought, where there is a legitimate and appropriate basis to do so, unless a compromise can be reached with such subscriber.”

“If the order is made as sought, [Golden Eye] intends (on behalf of the Second to Fourteenth Applicants and subject to sight of the exact information provided) to send pre-action correspondence to the persons so identified and, if appropriate in due course, to bring proceedings against those persons.”

“The service that has been subscribed to is run by a man called Alireza Torabi who is an IT Consultant. He has prepared a statement setting out the way in which his software detects downloading. His statement is included with this letter. I also have a report from an expert, Mr Vogler which sets out how the system works.”

“Expert evidence is admissible under s.3 of the Civil Evidence Act 1972 in any case where the Court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the Court's decision on any of the issues which it has to decide and the witness to be called satisfies the Court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues.”

“UPON the Application as set out in the Claim Form dated … 2011 and Application Notice dated AND UPON the Applicants undertaking not (without further order of the Court) to use or disclose the information provided to it pursuant to this order (or any of it) save for the purposes of these proceedings, or save for the purpose of bringing separate proceedings against any person(s) identified pursuant to this Order, and save for the purposes of any pre-action correspondence relating thereto. AND UPON reading the documents marked in the Court file as having been read AND UPON the Respondent not consenting to this Order but having indicated through their solicitors, Baker & McKenzie, that it does not contest to the making of the Order herein; AND UPON it appearing to the court that there is a prima facie case that each of the respective subscribers associated with the internet protocol addresses listed in Schedule 1 to this order has copied one or more of each of the Applicants’ works (the ‘Works’) without the respective Applicant’s permission for the purpose of making it available via file sharing web sites for third parties to download which may give rise to a claim for copyright infringement; AND UPON the Applicants having undertaken to the Court that they have a genuine intention to pursue a claim against any of the subscribers with whom a compromise is not reached and where there is a legitimate and appropriate legal basis to do so; AND UPON it appearing to the Court that on the aforementioned facts each of the Applicants have a real prospect of success in a claim by the Applicants for relevant infringement of the copyright in one or more of the Works; AND UPON each of the Applicants undertaking not to disclose to the general public, by making or issuing a statement to the media, the names or addresses of any person or persons whose identity is made known to the Applicants as a result of the grant of the relief ordered below until after (1) the express consent of the respective person, or (2) the Applicants have commenced proceedings to enforce their copyright and related rights against such person or persons as contemplated by paragraph of this Order; IT IS ORDERED THAT; 1 The Respondent shall within a reasonable period of time from the date of this Order disclose to the First Applicant (if or to the extent known or otherwise available to the Respondent, after carrying out a reasonable search) the name and postal address of the registered owner or owners of each of the internet account or accounts that were assigned to the internet protocol address listed in Schedule 1 hereto, on the dates, times and time zones shown therein. Such disclosure shall be in electronic diary form subject to asymmetric encryption as specified to the First Applicant so far as reasonably practicable and convenient to the Respondent. 2 The Applicants are granted permission (to the extent that it is necessary) to use the information provided to it pursuant to the Order in paragraph 1 herein for the purposes of bringing separate proceedings for copyright infringement against those said persons (or any of them), and for the purposes of any pre-action correspondence relating thereto. 3 Until such time as it has complied with the Order in paragraph 1 herein, the Respondent shall not delete or destroy its records of the information sought. 4(a) The First Applicant shall be the only Applicant entitled to request details of IP addresses held by the Respondent pursuant to this Order. The First Applicant shall issue a request to the Respondent for the details of the registered owner or owners of the IP addresses listed in Schedule 1 in batched of no more than 1000 IP addresses (each a ‘Batch’). 4(b) Within 7 days of the date of this Order, the First Applicant, on behalf of all the Applicants, shall pay into an escrow account to be held by the Respondent’s solicitors, Baker & McKenzie LLP, (the ‘Escrow Account’) a sum equal to £2.20 per IP address requested within the initial Batch together with £2500 costs to be held as security for the costs specified in paragraph 5 below. 4(c) At least 7 days prior to the making of any further request to the Respondent in respect of subsequent Batches, the First Applicant, on behalf of all of the Applicants, shall pay into the Escrow Account a sum equal to £2.20 per IP address requested within each subsequent Batch. 4(d) For the avoidance of doubt, the Respondent shall be under no obligation to disclose details of any IP address requested within a Batch unless and until the corresponding payment into the Escrow Account has been made. 4(f) The First Applicant shall be entitled to set-off the amounts to be paid into the Escrow Account in respect of subsequent Batches (in accordance with paragraph 4(c)) against any sums remaining in the Escrow Account and not drawn down by the Respondent on the basis of paragraph 4(e). If any sums remain in the Escrow Account after the final Batch has been requested by reason of paragraph 4(e), the Respondent shall return such sums to the Respondent [sic] as soon as reasonably practicable. 5 The Respondents shall be entitled within 14 days of invoicing the First Applicant to draw down such amount from the Escrow Account to cover its reasonable costs will include all the reasonable costs (including solicitors’ costs) of (1) considering the Application, (2) responding to, preparing for and attending (if necessary) the hearing of this Application, (3) complying with this Order (including reasonable software development and costs for the purposes of efficiently complying with this and future orders to be agreed) and (4) responding to queries and complaints pertaining to this Order which are received by the respective Respondent after the date on which disclosure takes place. 6 To the extent that the Respondent’s reasonable costs exceed the amount contained within the Escrow Account, the First Applicant shall, within 30 days of being invoiced in writing, pay to the Respondent the outstanding reasonable costs of complying with the Order in any event such costs to be assessed if not agreed. 7 The Order in paragraph 4 herein is without prejudice to the rights (if any) of the Applicants to seek to recover the said costs and/or their own costs of this application (or any of them) from the persons identified pursuant to this Order (or any of them) whether by way of an order for costs or damages in these or any other proceedings, or by any other means whatsoever. However, the Applicants will not use or disclose any documents and/or information disclosed pursuant to this Order for any purpose other than pursuing a claim for infringement of the copyright of the Applicants copyright in one or more of the Works. 8 The Applicants shall include in every first letter of claim to each potential defendant a copy of this order and the letter in the form set out in Schedule 2 hereto. 9 Within six months of the date of disclosure, the First Applicant shall provide to the Respondent a written report stating precisely from the relevant names disclosed how many of those persons (1) were sent letters of claim; (2) makes a positive and expressed confession of liability; (3) by their own volition accepts the First Applicant’s compromise agreement without an expressed confession of liability; (4) requests the Applicants commences proceedings; and (5) against whom the Applicants have issued legal proceedings. 10 Within twelve months of the date of disclosure, the Applicants shall destroy all copies of any data which has not been used to either send a letter or claim or issue legal proceedings for infringement of copyright on the terms set out in this Order and shall provide written confirmation to the Respondent that such destruction has taken place.”

“Dear GOLDEN EYE (INTERNATIONAL) LIMITED (‘GEIL’) Nature of GEIL’s rights It is with regret that we are writing this letter to you. However, GEIL is very concerned at the illicit distribution of films over the internet. GEIL has the exclusive licence of all of the rights in the film sold under the name ‘[E]’ (‘the Work’). The Work has been made available for sale in the United Kingdom. This letter is written pursuant to the Code of Practice (‘the Code’) for pre-action conduct in intellectual property disputes. This letter follows the Code and your response should also follow the Code. Applicant copy of the relevant part of the Code is enclosed with this letter. This letter will set out the claim made by GEIL. In accordance with the Code, you are required to provide a full written response as soon as is reasonably possible. We draw your attention to paragraph 4.1 of the Code. Forensic Analyst We have obtained the services of a forensic computer analyst to search for and identify internet addresses from which out copyright works (including the Work) are being made available on so called ‘peer to peer’ (P2P) internet sites for the purposes of making them available for download by third parties without our client’s consent or licence. Evidence GEIL’s forensic computer analyst has provided us with evidence that the following UK date and time, [B] [C], all or part of the Work was made available from the internet protocol (or IP) address [Applicant], specifically for the purpose of downloading by third parties. We attach a copy of his report. We showed this evidence to your internet service provider Telefonica UK Limited (‘O2’) who would not supply us with any information without a Court order. We therefore made an application to Court asking for an Order against O2 that they disclose the names and addresses associated with the IP address on the date and time in question. On 2011 Mr Justice , sitting in the High Court, ordered O2 to give us disclosure of your name and address for the purpose of this letter. For your information we enclose a copy of that Order. In accordance with that Order, O2 identified you as the subscriber noted in their systems as on their network associated with the IP address on the date and at the time in question. Please be assured that we have stringent security measures in force to ensure that, so far as is humanly possible, the data we hold is fully protected. Infringing Acts The act of file sharing the Work without the consent of GEIL is unlawful and, in particular, has caused damage to our business. In effect, every copy of the Work that is downloaded represents a potential lost sale. Whenever the Work is made available for download to other parties there is the opportunity for multiple downloads to take place resulting in lost revenue. In addition to GEIL selling direct, we also enter into licensing agreements for third party organisations to distribute our content. File sharing also results in lost royalty revenue and weakening of the brands saleability. We have set out below the infringing acts you are liable for to GEIL: 1. either for copying the Work on to the hard drive of your personal (or office) computer (‘PC’) (pursuant to the sections 16(1)(a) and 17 of the Copyright Designs and Patents Act 1988) (‘The Act’); and/or for 2. making the Work available to third parties for downloading (pursuant to sections 16(1)(d) and 20 of the Act). Please note that such making available can be caused simply by a person connected to your internet connection downloading the Work, during the course of which the part downloaded is then made available to other third parties connected to the network in question. In the event that you were not responsible for the infringing acts outlined above, you should make full disclosure to us of the other parties at your residence using your internet connection to make the Work available for download. Legal Consequences As we have stated above, the extensive file sharing activity is causing damage to GEIL’s business. We are therefore left with no alternative but to monitor carefully its intellectual property rights and enforce them against infringers. In the event that this matter cannot be resolved, it may become necessary for GEIL to being a claim against you for copyright infringement. This claim would be brought in the civil court, where liability is determined on the balance of probabilities. In that event, we must make you aware that if successful, we will be entitled to recover from you damages and possibly a contribution towards the legal costs if you choose to instruct lawyers. If GEIL secures a judgment, and in the event that you were not able to pay whatever sums the court may order you to pay, we would have no option but to take steps to enforce the debt against you. Proposed Settlement GEIL is prepared to give you the opportunity to avoid legal action by proposing a settlement offer, the details of which are set out below. Our offer to resolve the claim against you is intended, on this occasion, to focus your attention on the potentially serious consequences of your actions (or inaction, by permitting a third party to use your internet connection). We also trust that these actions will not be repeated. Our offer is that you: 1. promise in a written undertaking not to upload, download, make available or otherwise share the Work or any of GEIL works (or other intellectual property) and/or permit others to do the same using your internet connection, at any time in the future, either from the above IP address or any other; 2. agree to delete any copies of the Work (and any other intellectual property of GEIL from your hard drive and/or operating system and/or any copies saved to disk (or other media), other than those that were purchased by you from a legitimate source; and 3. pay £700.00 as compensation to GEIL for its losses. Next Steps – payment and undertakings You can provide the undertaking (referred to at 1 and 2 above) by signing the written undertakings enclosed with this letter and returning them to us, together with your payment, using the attached payment form. Payment must be made either by cheque, bank transfer, credit card or debit card. No other form of payment will be accepted. Alternatively you can make payment or speak to a member of our Copyright Infringement Department on 0871 990 6500 or pay online at www.goldeneyeint.com. For the avoidance of doubt, these undertakings will represent an agreement between you and GEIL and if you act in breach of that agreement, we will have no option but to take further action against you. In accordance with the Code, a response is required as soon as reasonably possible. We consider 14 days to be a reasonable period. Accordingly, if this matter is to settle, the payment and undertakings must be made and received by us within 14 days of receipt of this letter. In the event that either the payment or undertakings are not received within fourteen days of the date of this letter, GEIL reserves the right to take further action which could include commencement of proceedings and possibly an application to your ISP to slow down or terminate your internet connection. Legal Advice If you are in any doubt about the contents of this letter and its seriousness, we would recommend that you seek legal advice as a matter of urgency. All submissions from you must be in writing. You may also contact us by email at info@goldeneyeint.com (quoting the reference at the top of this letter) or by fax on 0871 990 6510. Yours faithfully Copyright Infringement Department Golden Eye (International) Limited”

“A CAB client in Buckinghamshire was worried about the consequences of not paying a £295 demand for copyright breach despite being certain that no breach had occurred in her household. At the time of the claimed download the client was at work, her eldest child was away at university and the two younger children were at school. She checked the download history of all the computers and found no evidence to substantiate the claim.”

“4. The claimant Media CAT has claimed at various stages to be (i) a copyright protection society (whose members are the owners of the copyright in the works), (ii) the exclusive territorial licensee of rights in the work, and (iii) to represent the owners of copyright or exclusive licensees of that copyright. It is none of those. Copyright protection societies or collecting societies (such as the PRS, MCPS and the like) are reputable organisations concerned with licensing copyright in various contexts under licensing schemes. Media CAT is not one of those and Mr Ludbrook, Media CAT's counsel at this hearing, accepted Media CAT was not a ‘copyright protection society’. No copyright lawyer would use that term to describe Media CAT. Also no copyright lawyer would call Media CAT an exclusive territorial licensee of the copyright. It does not have a licence to do any of the acts restricted by copyright (such as copying the films or issuing them to the public, see sections 16(1) and 92(1) of the Copyright Designs and Patents Act 1988). Finally Media CAT does not represent the copyright owners in the sense that it brings the proceedings in a representative capacity nor do I understand it to act on behalf of the copyright owners in the sense that its acts can bind the copyright owners by a form of agency. Mr Ludbrook did not seek to persuade me that Media CAT was any of these things. 5. So who is Media CAT? At best it is a company with a contract which gives it ‘all rights necessary to allow [Media CAT] to inquire claim demand and prosecute through the civil courts where necessary any person or persons identified as having made available for download a film for which [an agreement] has expressly licensed’. The expression quoted comes from clause 1.1.1 of an agreement between Media CAT and a company called Sheptonhurst Ltd dated 19th November 2009. According to the agreement Sheptonhurst are the owners of copyright in the films (clause 2.2) and the agreement purports to give Media CAT the right I have described. It also purports to give Media CAT the ‘sole and exclusive right to demand collect and receive all revenues in respect of illegal file sharing’ on the terms of the agreement. The extent to which it is legally possible for a company like Media CAT to acquire the rights it claims in relation to copyright is open to question and has not been tested in court.”

“17. … A claimant or potential claimant in a civil case is not required by the law to write a mealy mouthed or apologetic letter to a potential defendant. Robust correspondence between lawyers and sophisticated parties is part of the legal process. However letters which deal with issues of the complexity of the ones arising in this case need to be considered very carefully if they are addressed to ordinary members of the public. 18. The letters assert Media CAT is a copyright protection society (which it is not) and the exclusive territorial licensee of rights granted by the copyright owner (which it is not). … The letter would be understood by many people as a statement that they have been caught infringing copyright in a pornographic film, that Media CAT has evidence of precisely that and that a court has already looked into the matter (a copy of the Order of Chief Master Winegarten is provided). They may think that their own ISP has decided that they are indeed infringing. … 19. A sum of £495 is demanded as compensation. This sum is said to include damages as well as ‘ISP administration costs (and its legal costs where applicable), a contribution to our clients legal costs incurred to date and all additional costs’. However no breakdown of the figure is given. The letter states that if this sum is agreed no further payment will be sought in relation to the infringement(s) being written about and the matter will be closed. In a section headed ‘next steps - commencing proceedings’ it is made clear that legal proceedings will be commenced if the matter cannot be settled to Media CAT's satisfaction. … 20. The letter ends with a statement that ‘this letter complies with the Code of Practice for Pre-Action Conduct in Intellectual Property Disputes (January 2004) a copy of which is available on our website’. That sounds official but there is in fact no formal Pre-action Protocol for Intellectual Property. The CPR includes a Practice Direction – Pre-action Conduct which applies generally and 9 specific pre-action protocols are in force which deal with particular areas of practice. Intellectual Property cases are not one of those areas. There was an attempt some years ago to settle a pre-action protocol for IP cases but the protocol was not adopted by the court. It may be the informal one is being referred to. The absence of an official protocol is the reason why CPR Pt 63 r63.20(2), which relates to proceedings before this the Patents County Court, refers only to the general Practice Direction – Pre-action Conduct. 21. Perhaps many, maybe more of the recipients of these letters have been squarely infringing the copyright of Sheptonhurst on a major scale and know that they have been doing exactly that. They may think £495 is a small price to pay and settled immediately. That is a matter for them. However it is easy for seasoned lawyers to under-estimate the effect a letter of this kind could have on ordinary members of the public. This court's office has had telephone calls from people in tears having received correspondence from ACS:Law on behalf of Media CAT. Clearly a recipient of a letter like this needs to take urgent and specialist legal advice. Obviously many people do not and find it very difficult to do so. Some people will be tempted to pay, regardless of whether they think they have actually done anything, simply because of the desire to avoid embarrassment and publicity given that the allegation is about pornography. Others may take the view that it all looks and sounds very official and rather than conduct a legal fight they cannot afford, they will pay £495. After all the letter refers to an order of the High Court which identified them in the first place. Lay members of the public will not know the intricacies of the Norwich Pharmacal jurisdiction. They will not appreciate that the court order is not based on a finding of infringement at all.”

“27. The Particulars of Claim also mentioned unsecured internet connections and tied in with that alleged infringement by the individual defendant either by infringing themselves or ‘by allowing others to do so’. The judgment notes that I am aware of no published decision in this country which deals with the issue of unsecured internet connections in the context of copyright infringement and refers in passing to a decision of German Bundesgerichtshof (BGH) on the point. The point about ‘allowing’ is that the word used in s16(2) of the 1988 Act is ‘authorising’ not ‘allowing’. They are by no means the same and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties. 28. This question of unsecured internet connections and infringing by ‘allowing others’ is a critical one since Media CAT's monitoring exercise cannot and does not purport to identify the individual who actually did anything. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All Media CAT's monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT's favour that the IP address is indeed linked to wholesale infringements of the copyright in question (like the Polydor case (above)), Media CAT do not know who did it and know that they do not know who did it. … 29. Media CAT's case on this is in two parts. Of course Media CAT cannot know who actually used the P2P software, so in paragraph 3 of the Particulars of Claim they plead that the software was used either by the named defendant who was identified by the ISP, or by someone they authorised to use the internet connection or someone who gained access to the internet connection ‘due to the router having no or no adequate security’. Then in paragraph 5 the plea is that "in the premises" the defendant has by himself, or by allowing others to do so, infringed. So taken together these two paragraphs show that the Particulars of Claim is pleaded on the basis that one way or another the defendant must be liable for the infringement which is taking place. 30. But the argument is based on equating ‘allowing’ and ‘authorising’ and on other points. What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright? Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement within s16(2)? I am not aware of a case with decides that question either. Then there is the question of whether leaving an internet connection ‘unsecured’ opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally what does ‘unsecured’ mean? Wireless routers have different levels of security available and if the level of security is relevant to liability - where is the line to be drawn? No case has decided these issues….”

“98. The question in my judgment is whether the effect the notices of discontinuance undoubtedly have of bringing these cases to an end and thereby terminating any scrutiny by the court of the claims is an unwarranted advantage to Media CAT amounting to an abuse of the court's process. In my judgment it is the existence of a huge wider pool of parallel claims including but not limited to the 2[7] now before the court which is a decisive factor here. Problems with the 2[7] claims before the court of the kind discussed in this judgment are generic to all of them and to all the other claims Media CAT is making against the individuals identified by the Norwich Pharmacal orders in the first place. 99. Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 2[7] court cases, a wholesale letter writing campaign is being conducted from which revenues are being generated. This letter writing exercise is founded on the threat of legal proceedings such as the claims before this court. 100. … Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so. Note that ACS:Law's interest is specifically mentioned in the previous paragraph because of course they receive 65% of the revenues from the letter writing exercise. In fact Media CAT's financial interest is actually much less than that of ACS:Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients? 101. Beyond Mr Crossley's statement the only evidence I have seen of Media CAT making good an intention to press the claims in court is the 8 RJFs seeking default judgment in the October/November 2010. Mr Crossley's explanations never refer to a trial and never mention joining the copyright owners into the proceedings. His statements concerning his and his clients intent to litigate would all be true even if all Media CAT ever intended was to go as far as RFJs. I have seen no evidence of actions evidencing a desire to press these claims beyond applications for judgment in default. Furthermore even assuming Media CAT and ACS:Law knew at the start that they would have to litigate some claims sometime to some extent, it is not at all clear what Media CAT intends to do now. Mr Crossley says he was keen to continue the litigation and he stands by the initial letters of claim. In my judgment the letters of claim are flawed and not a solid place to stand. Mr Crossley is keen to continue the litigation but he is not doing so. 102. The GCB episode is damning in my judgment. This shows that Media CAT is a party who, while coming to court to discontinue, is at the very same time trying to ram home claims formulated on exactly the same basis away from the gaze of the court. That will not do. I find that these notices of discontinuance are indeed an abuse of the court's process. The advantage of discontinuing as opposed to applying to amend is unwarranted in that it avoids judicial scrutiny of the underlying basis for wider campaign orchestrated by Media CAT and ACS:Law to generate revenue under the various agreements such as the Sheptonhurst agreement.”

“13. The Norwich Pharmacal jurisdiction has been considered and used in many further cases and wider contexts. It plays an important role in the courts armoury to see that justice is done. It is not a requirement that the applicant will be bringing court proceedings, see British Steel Corp v Granada Television Ltd [1981 AC 1096, Lord Fraser at 1200C-G and Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29 [2001] 1 WLR 2033, Lord Woolf CJ at [41]-[47]. In Ashworth the reason for seeking the identity of the person in question was to discipline the person, which in practise would mean they would be dismissed (see [19]). 14. Nevertheless there is a potential difficulty with the Norwich Pharmacal process which is put into 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. The respondent is not going to be sued. A Norwich Pharmacal application is not and cannot be the place in which to try the cause of action. That happens when the person's identity is revealed and then usually proceedings are commenced. Even if proceedings are not commenced – in a situation like Ashworth where a single name is being sought in order to discipline the person – no doubt that person would be able to take whatever steps to defend themselves they wished to and if necessary the matter could come to an appropriate court or tribunal. … 112. I cannot imagine that the court making the Norwich Pharmacal orders in this case did so with a view to setting in train an exercise that was to be conducted in the manner that has subsequently emerged. 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 tests cases at an early stage before a letter writing campaign begins. When Anton Piller (search and seizure) orders are made the practice is for a supervising solicitor who does not act for the claimant to be closely involved in order to ensure that the orders are not abused. The supervising solicitors are experienced practitioners. Perhaps a court asked for a Norwich Pharmacal order of the kind made here should consider requiring some similar form of supervision from a[n] experienced neutral solicitor.”

“The Claimant is the exclusive licensee in the UK of rights in the film sold under the name Fancy an Indian? (the film), including the right to act in relation to any breach of copyright. On 27th November 2009 the Claimant believes the defendant unlawfully made all or part of the film available from his IP address for downloading by third parties. On 29th September 2010 the Claimant sent a letter before action to the Defendant setting out in full its claim for breach of copyright. The Defendant failed to reply. The Claimant sent another letter to the Defendant on 8th November 2010 to which no response was received. The Claimant claims #700 for breach of copyright. The Claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 27/11/2009 to 21/01/2011 on #700.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of #0.15.”

“Exclusive licences 92.(1) In this Part an ‘exclusive licence’ means a licence in writing signed by on behalf of the copyright owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable by the copyright owner. … Provisions as to damages in infringement action 97. … (2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to- (a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require. … Rights and remedies of exclusive licenseee 101.(1) An exclusive licensee has, except against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment. (2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly. (3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner. … Exercise of concurrent rights 102.(1) Where an action for infringement of copyright brought by the copyright owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant. (2) A copyright owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings. (3) The above provisions do not affect the granting of interlocutory relief on an application by a copyright owner or exclusive licensee alone. (4) Where an action for infringement of copyright is brought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action— (a) the court shall in assessing damages take into account— (i) the terms of the licence, and (ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement; (b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and (c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them; and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action. …”

“General obligation 1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.”

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

“Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority. … Article 17 Right to property 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected. … Article 52 Scope and interpretation of rights and principles 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6. Full account shall be taken of national laws and practices as specified in this Charter. 7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.”

“Article 1 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law. Article 2 To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.”

“Article 1 Object of the Directive 1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. … Article 7 Member States shall provide that personal data may be processed only if: … (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1). Article 13 Exemptions and restrictions 1. Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6 (1), 10, 11 (1), 12 and 21 when such a restriction constitutes a necessary measures to safeguard: … (g) the protection of the data subject or of the rights and freedoms of others.”

“(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court. (2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary – (a) For the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or (b) For the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.” (a) For the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or (b) For the purpose of obtaining legal advice, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.”

“… if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”

“24. It is not necessary to construe section 35 or paragraphs 5 and 6 of Schedule 2, but it is manifest from paragraph 6 of Schedule 2 [of the Data Protection Act 1998] that no order is to be made for disclosure of a data subject's identity, whether under the Norwich Pharmacal doctrine or otherwise, unless the court has first considered whether the disclosure is warranted having regard to the rights and freedoms or the legitimate interests of the data subject. By virtue of section 10 of the Contempt of Court Act 1981, if applicable, the court must also be satisfied that disclosure is necessary in the interests of justice. 25. In a case such as the present, and particularly since the coming into force on 2 October 2000 of the Human Rights Act 1998, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court: see the Human Rights Act 1998, section 6, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, articles 10 and (arguably at least) 6(1). There is nothing in article 10 which supports Mr Moloney's contention that it protects the named but not the anonymous, and there are many situations in which - again contrary to Mr Moloney's contention - the protection of a person's identity from disclosure may be legitimate. 26. 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. However, the website operator can, where appropriate, tell the user what is going on and to offer to pass on in writing to the claimant and the court any worthwhile reason the user wants to put forward for not having his or her identity disclosed. Further, the court could require that to be done before making an order. Doing so will enable the court to do what is required of it with slightly more confidence that it is respecting the law laid down in more than one statute by Parliament and doing no injustice to a third party, in particular not violating his convention rights.”

“25. The judge concluded that the RFU had no available means of finding out the information it was seeking other than through Viagogo and that the making of the order was, therefore, necessary. In his oral argument Mr Howe did not suggest that there were such other available means of obtaining such information. His submission was rather that the RFU had the remedy in their own hands because, instead of issuing tickets to Members Clubs and sponsors, they could issue them only to named individual applicants and require them to present personal identification in the form of a passport or other document when they entered the ground. That, of course, would be wholly inimical to the way in which the RFU wishes to distribute tickets for important matches and it can hardly be appropriate for the owner of a website to require the RFU to make such fundamental alteration to its ticketing operations. 26. In the absence of any plausible suggestion as to how the RFU could obtain information as to the identity of those selling tickets for more than their face value, it seems to me that a Norwich Pharmacal order is, indeed, necessary and I would not disagree with the judge under this head. … 28. Once it is established that there is arguable wrongdoing by unidentified individuals and that there is no realistic way of discovering the arguable wrong doers other than a Norwich Pharmacal order, it will generally be proportionate to make such an order revealing the identity of those arguable wrongdoers. There can be no reasonable expectation of privacy in respect of data which reveal such arguable wrongs and Viagogo's own conditions of business point out to their customers that there may be circumstances in which their personal data will be passed on to others. Mr Mill submitted that the acceptance of such conditions constituted a waiver by Viagogo's customers of confidentiality in their personal data. I doubt if that is right but the fact that Viagogo's conditions of business contemplate that personal data of their customers may be revealed is not wholly irrelevant to proportionality. 29. I would prefer to say that the requirement that Viagogo disclose a limited amount of personal data in this case is proportionate because there is no other way in which arguable wrongdoing can be exposed. In this case, as in many other Norwich Pharmacal cases, necessity and proportionality may go hand in hand. The terms of the order must, of course, be proportionate but Viagogo have never suggested that some more limited form of order would be appropriate. The only personal data ordered to be revealed are the names and addresses of the arguable wrongdoers. That seems to me to be both proportionate and just.”

“It is perfectly well settled that a person who makes an ex parte application to the court—that is to say, in the absence of the person who will be affected by that which the court is asked to do—is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him. That is perfectly plain and requires no authority to justify it.”

“There is good reason why principles of maintenance and champerty should apply with particular rigour to those conducting litigation or appearing as advocates. To demonstrate this we can do no better than cite a passage in the judgment of Buckley LJ in Wallersteiner v Moir (No 2) [1975] QB 373, 401-402: ‘A contingency fee, that is, an arrangement under which the legal advisers of a litigant shall be remunerated only in the event of the litigant succeeding in recovering money or other property in the action, has hitherto always been regarded as illegal under English law on the ground that it involves maintenance of the action by the legal adviser. Moreover where, as is usual in such a case, the remuneration which the adviser is to receive is to be, or to be measured by, a proportion of the fund or of the value of the property recovered, the arrangement may fall within that particular class of maintenance called champerty ... It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First, in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client's case, which he must, of course, present and conduct with the utmost care of his client's interests, is also presented and conducted with scrupulous fairness and integrity. A barrister owes similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations ...’” ‘A contingency fee, that is, an arrangement under which the legal advisers of a litigant shall be remunerated only in the event of the litigant succeeding in recovering money or other property in the action, has hitherto always been regarded as illegal under English law on the ground that it involves maintenance of the action by the legal adviser. Moreover where, as is usual in such a case, the remuneration which the adviser is to receive is to be, or to be measured by, a proportion of the fund or of the value of the property recovered, the arrangement may fall within that particular class of maintenance called champerty ... It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First, in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client's case, which he must, of course, present and conduct with the utmost care of his client's interests, is also presented and conducted with scrupulous fairness and integrity. A barrister owes similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations ...’”

“... it assumes that £700 will be successfully obtained from each of the 9000, when that is plainly wrong. In fact, it is likely that only a small proportion will result in a successfully obtained payment of any sum.”

“1. Does Directive 2006/24 ... on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (the Data Storage Directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48 ... on the enforcement of intellectual property rights [the Enforcement Directive] and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate. 2. Is the answer to Question 1 affected by the fact that the Member State has not implemented the Data Storage Directive despite the fact that the period prescribed for implementation has expired?”

“La directive 2006/24 ... modifiant la directive 2002/58/CE, ne s’applique pas au traitement des données à caractère personnel à d’autres fins que celles visées à l’article 1er, paragraphe 1, de cette directive. Par conséquent, ladite directive ne s’oppose pas à l’application d’une disposition nationale au titre de laquelle, dans le cadre d’une procédure civile, aux fins d’identifier un abonné déterminé, le juge enjoint à un fournisseur d’accès à Internet de divulguer au titulaire de droits d’auteur, ou à son ayant droit, des informations relatives à l’identité de l’abonné à qui ledit opérateur a attribué une adresse IP qui aurait servi à l’atteinte audit droit. Toutefois, ces informations doivent avoir été conservées pour pouvoir être divulguées et utilisées à cette fin conformément à des dispositions législatives nationales détaillées, qui ont été adoptées dans le respect du droit de l’Union en matière de protection des données à caractère personnel.”

“Directive 2006/24 ... and amending Directive 2002/58/EC does not apply to the processing of personal data for purposes other than those referred to in Article 1, paragraph 1 of this Directive. Therefore, the directive does not preclude the application of a national provision under which, in the context of civil proceedings, in order to identify a specific subscriber, the judge ordered a provider access to the Internet to disclose to the holder of copyright, or his successor in title, information concerning the identity of the subscriber to whom the trader has allocated an IP address that would have been used to achieve that right. However, this information must be retained in order to be disclosed and used for this purpose in accordance with detailed national legislation, which were adopted in compliance with EU law on the protection of personal data.”