High Court of Ireland Decisions

2005 IEHC 233

THE HIGH COURT

DUBLIN

Commercial

Case No. 2014P/2005

EMI RECORDS (IRELAND) LIMITED

SONY BMG MUSIC ENTERTAINMENT (IRL) LTD

UNIVERSAL MUSIC IRELAND LIMITED

WARNER MUSIC IRELAND LIMITED

PLAINTIFFS

and

EIRCOM LIMITED

BT COMMUNICATIONS IRELAND LIMITED

DEFENDANTS

EX-TEMPORE JUDGMENT GIVEN BY MR. JUSTICE KELLY ON FRIDAY, 8 JULY 2005

In 1973 the House of Lords decided the case of Norwich Pharmacal Company and Others -v- Customs and Excise Commissioners [1974] AC 133. It established a principle which is articulated in the speech of Lord Reid at page 175 as follows:

"If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, 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."

That principle has been accepted as forming part of the law in a number of common law jurisdictions, including this State. It has been relied on to obtain eponymous orders of the type sought in this case. They are simply called Norwich Pharmacal Orders. They require disclosure of identity and other information held by a third party concerning an alleged wrongdoer to the wronged person.

In accepting that there is a jurisdiction to make orders of the type sought, the Supreme Court said in the case of Megaleasing UK Ltd. -v- Barrett [1993] IRLM 497 per Chief Justice Finlay at page 504 as follows:

"The remedy should be confined to cases where very clear proof of a wrongdoing exists and possibly, so far as it applies to an action for discovery alone prior to the institution of any other proceedings, to cases where what is really sought is the names and identity of the wrongdoers rather than the factual information concerning the commission of the wrong."

Orders of this type have been particularly useful in the field of infringement of Intellectual Property rights.

In a decision of the Federal Court of Appeal of Canada given just two months ago in a case which is called BMG Canada Incorporated and Others -v- Doe and Others, Sexton J.A., speaking for that Court said as follows:

"Intellectual Property laws originated in order to protect the promulgation of ideas. Copyright law provides incentives for innovators,
 


artists, musicians, inventors, writers, performers and marketers to create. It is designed to ensure that ideas are expressed and developed instead of remaining dormant. Individuals need to be encouraged to develop their own talents and personal expression of artistic ideas, including music. If they are robbed of the fruits of their efforts their incentive to express their ideas in tangible form is diminished.

Modern technology,, such as the internet, has provided extraordinary benefits for society, which include faster and more effective means of communication to wider audiences. This technology must not be allowed to obliterate those personal property rights which society has deemed important. Although privacy concerns must also be considered, it seems to me that they must yield to public concerns for the protection of Intellectual Property^, rights in situations where infringement threatens to erode those rights.

Thus in my view in cases where Plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright they have a right to Have the identity revealed for the purpose of bringing action. However, caution must be exercised by the courts in ordering such disclosure to make sure that privacy rights are invaded in the most minimal way."

I agree.

It is against this legal landscape that the Plaintiffs have sought orders requiring the Defendants to make disclosure of the names and addresses of 17 of their subscribers. These are internet subscribers who are designated by what is called an Internet Protocol Address and these addresses are set out in the schedule to the plenary summons.

Each of the four Plaintiffs have been assigned the Irish copyright in a large number of sound recordings. The Plaintiffs belong to an organisation called the Irish Recorded Music Association, IRMA. That entity retained a company called MediaSentry to investigate and gather evidence of what were perceived as activities which infringed the Plaintiff's copyright. An investigation was carried out and its fruits have been put before the Court by way of sworn testimony. It is not necessary for me to set out in any detail the way in which that investigation was carried out and the various technical matters that are addressed in some detail in the affidavit evidence which has been placed before the court. It is sufficient to say that I am satisfied that as a result of the expert evidence that has been put before me, certain computers connected to the internet via the Defendant's facilities have been used to make available to the public a significant volume of sound recordings, the copyright in which has been exclusively licensed to the Plaintiffs. It has been possible to download from these computers sample recordings and so to identify the internet protocol addresses which have been allocated by the Defendants to the computers in question. It is clear that the Defendants have records demonstrating to which subscribers to their services a particular Internet Protocol Address was allocated at the time in question.

When the computer of a subscriber connects from time to time to one of the Defendant internet service providers it allocates a unique number which is this Internet Protocol Address. when downloading the sample recordings in these proceedings that address allocated to the computer for which the sample recording and other recordings were being made was recorded. It is the names and addresses of the subscribers to whom these Internet protocol addresses were allocated that is now sought.

On the evidence which has been put before me I am satisfied that there is prima facie demonstration of a wrongful activity, namely infringement of the Plaintiff's copyright. I should say that there is neither a suggestion nor evidence of any wrongdoing on the part of the individual Defendants. The identity of the subscribers who were designated these Internet Protocol Addresses is not known by the Plaintiffs, but it is of course known to the Defendants. The Defendants accept that there is no other way, apart from this application, by which the Plaintiffs can acquire information concerning the identities sought.

Whilst I reiterate again there is no suggestion of any wrongdoing on the part of the Defendants, they are concerned because they owe duties of confidentiality to their subscribers. All of the parties to this litigation accept that whilst the court has jurisdiction to make the orders sought it is a jurisdiction which falls to be exercised sparingly. It involves the court in balancing the rights of the Plaintiffs with the obligations of the Defendants towards their subscribers and the rights of those subscribers. These obligations are obligations of confidentiality or privacy. These duties of confidentiality owed by the Defendants to their subscribers and the subscribers entitlements may arise under statute, by contract or at common law.

Each of the statutory entitlements, whether they arise under the Data Protection legislation or the Postal and Telecommunications legislation, are subject to a provision which permits of the confidentiality to be legitimately breached by an order of the court. Each of the Acts in question so provides. It is, therefore, clear that the legislature built in such a possibility, although it did not prescribe the conditions under which such an order might be made.

I am satisfied that whether the right to confidentiality arises by statute or by contract or at common law, it cannot be relied on by a wrongdoer or a person against whom there is evidence of wrongdoing to protect his or her identity. The right to privacy or confidentiality of identity must give way where there is prima facie evidence of wrongdoing. There is such evidence here.

I am also not satisfied that the policy which has been put in place by the second Defendant to deal with unlawful activities on the part of its subscribers is such as to dilute the Plaintiff's entitlements to the orders sought. That policy cannot deal with past infringements or any entitlements to damages which the Plaintiffs may have in respect of such activity.

In these circumstances, therefore, balancing the rights and entitlements of the respective parties, I am satisfied that the Plaintiffs have made out a case for the making of the order which is sought. There will, however, be safeguards built into the order so as to ensure that the rights and entitlements of both the Defendants and their subscribers are adequately addressed.

Accordingly, the order which will require disclosure will be given on the basis of an undertaking, which the Plaintiffs have indicated they are quite prepared to give, to the effect that the information disclosed on foot of this order will be used solely for the purpose of seeking redress in respect of infringement of copyright in sound recordings, the copyright of which is exclusively licensed to the Plaintiffs for the territory of Ireland.

The second-named Defendants also asked that a further undertaking should be given by the Plaintiffs before an order might be made in their favour. It is an undertaking in a form which was given to Mr. Justice Blackburne in similar English proceedings and reads as follows:

"The Applicants undertake not to disclose to the general public, by making or issuing a statement to the media, the names and 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 the Applicants have begun the process of enforcing their copyright and related rights against such person or persons as contemplated by the order."

It seems to me that that is probably unnecessary having regard to the wide way in which the first undertaking that I have already indicated is drawn. But as there is no objection being raised by the Plaintiffs to this additional undertaking I propose to make the order conditional upon the giving of such an undertaking, although as I say I believe that it is already covered by the wider form of undertaking which I have stipulated. This is being done in protection of the rights and entitlements of the subscribers because it may turn out that they were not in fact guilty of any wrongdoing or that the named person was not the operator at the time when any wrongdoing was in fact carried out. Therefore their identity ought to be protected so as to ensure that it does not come into the public domain, save in circumstances where it arises in the context of infringement proceedings being taken by the Plaintiffs as a result of the information which they glean on foot of the order which I now make.

There will, therefore, be an order, subject to those undertakings, that the first Defendant shall, by a date and time to be fixed, disclose to the Plaintiff's solicitors to the extent known or otherwise available to the first Defendant and in documentary form, so far as reasonably practicable and convenient, the name, postal address and telephone number of the registered owners of the internet accounts which are set out in the first schedule to this order. There will be a like order made against the second-named Defendant in respect of the internet accounts which are set out in the second schedule to the order. I will hear counsel in relation to the time to be fixed and any other matter which arises.