The Open Rights Group (ORG) has today failed in its Court of Appeal bid to block Golden Eye International (GEIL), a firm that holds numerous copyrights for adult films (e.g. Ben Dover), from potentially sending thousands more internet piracy settlement letters to customers of UK ISP O2 (BE Broadband).
The situation stems from a July 2012 ruling in London’s High Court, which granted GEIL permission to seek the personal customer details associated with data from 2,845 internet connections that belonged to users of O2 and its sibling ISP BE Broadband. The data was ultimately linked to less than 1,000 actual customers, which were all suspected by GEIL of having engaged in copyright infringement (i.e. sharing adult films over public P2P file sharing networks).
Once identified a related customer can expect to receive two letters from GEIL. The first would act as a general notice that copyright infringement had been detected (example letter), while the second letter would focus on a negotiated settlement sum. Crucially Consumer Focus, which challenged GEIL, won significant concessions that meant the tone of the letters and their included information had to meet certain strict limitations (e.g. GEIL was prevented from wrongly asserting that the bill payer may be liable for any copyright infringement that occurs on their connection).
But the ruling left data pertaining to roughly 6,000 internet connections in limbo because they related to claims from 12 other copyright holders, whom had not joined the case. The court initially ruled that GEIL could not represent them and rejected the idea of selling “the intended Defendants’ privacy and data protection rights to the highest bidder“ (GEIL stood to keep 75% of any related cash settlements), yet GEIL decided to appeal that ruling.
In response the Open Rights Group (ORG) applied for permission to intervene and in early December 2012 succeeded in raising the £5,000 of funding needed to defend against GEILs appeal, which was used to pay the relevant court fees and their “crack legal team“. The case was heard on 10th December at 10am by Lord Justice Sullivan and Lord Justice Patten in the Court of Appeal (Court 71) and its conclusion has today been published.
The Final Judgement:
“It must follow that the judge’s refusal to grant relief to the Other Claimants was based on his disapproval of the recovery sharing arrangements with Golden Eye which is confirmed by his statement that to make the order would be tantamount to the court sanctioning the sale of the intended defendants’ rights to the highest bidder.
I have to say that I find those reasons difficult to follow. The court is not sanctioning the sale of anything. Indeed its ability to control the process (as the judge has done in this case) and ultimately to refuse relief was the primary reason why Arnold J. rejected the submission that the litigation arrangements made with Golden Eye in this case do not jeopardise or undermine the proper administration of justice.
If the arrangements are not therefore unlawful and are not simply a money-making exercise designed to take advantage of the vulnerability of the subscribers rather than a genuine attempt to protect the rights of the Other Claimants, I can see no justification for refusing relief based on a disapproval of those arrangements. Indeed it is difficult to articulate what that disapproval can be based on.”
During the proceedings GEIL appeared to argue that intellectual property rights outweighed the privacy rights of O2’s customers and suggested that it should be able to claim on behalf of the other 12 copyrights holders, while ORG countered that GEIL had no human right to access the related details and was just out to make money (Ben Dover himself said something similar). Still the Court of Appeal ultimately ruled to allow Golden Eye’s request.
Peter Bradwell, Open Rights Group, said:
“We are concerned that such a decision effectively means that someone who themselves has no interest in a claim can acquire personal details to obtain large sums of money. In this case Golden Eye are not a firm of solicitors, and thus are not regulated in the same way solicitors are.
The companies who hold the information, such as Telefonica UK in this case, usually do not contest these applications. That means it is left to us to defend the interests of their users in court. In future it will be much harder for people to run the sort of ‘speculative invoicing’ campaigns we have seen in the past. That’s down to the interventions made in this case.”
The Open Rights Group said that it would study the judgment carefully before considering how to proceed.
The Appeal Judgement (PDF)