July 29, 2019

The applicants, Mircom International Content Management & Consulting Ltd and Golden Eye International Ltd, applied for Norwich Pharmacal relief requesting that the defendant, Virgin Media Ltd, should provide details of the registered owner(s) of certain IP addresses identified as having unlawfully downloaded certain pornographic films in breach of the copyright that belonged to the other claimants to the proceedings, who were all film production companies.

Mr Recorder Douglas Campbell QC had to consider whether the correct legal approach to these kind of claims remained that in Golden Eye (International) Ltd v Telefónica UK Ltd [2012] EWHC 723 (Ch) and Golden Eye (International) Ltd v Telefónica UK Ltd (Open Rights Group Intervening) [2012] EWCA Civ 1740, which was also a request by Golden Eye for names and addresses of customers (this time of O2) alleged to have committed infringements of copyright through P2P file-sharing. Golden Eye sets out the conditions that must be satisfied in order for the court to grant Norwich Pharmacal relief in that situation. Mr Campbell also had to consider the impact (if any) of the introduction of the General Data Protection Regulation (2016/649/EU).

Mircom and Golden Eye submitted that the case was indistinguishable from Golden Eye and that the same approach should be applied. Virgin disagreed because of the Supreme Court’s judgment in Rugby Football Union v Viagogo [2012] UKSC 55 and because of the introduction of the GDPR.

Mr Campbell found that Viagogo was decided after the first instance decision in the Golden Eye litigation, but before the appeal, and there was no reason to suppose that the Court of Appeal had been unaware of it. Further, the approach set out by Mr Justice Arnold in Golden Eye (and later approved by the Court of Appeal) was expressly approved as a “correct statement” by Lord Kerr in Viagogo. In addition, Lord Kerr had noted that the applicant’s motive in Viagogo was the “entirely worthy” one of seeking to promote the sport of rugby and ensuring that members of the public could attend rugby matches, but that that had merely meant that Viagogo was a more attractive case on the facts. He had not suggested that the result in Golden Eye was wrong. Therefore, Viagogo had not changed the relevant legal approach, as set out in Golden Eye.

As for the GDPR, Mr Campbell found that the IP addresses requested by Mircom and Golden Eye were personal data under the GDPR. He also found that, if the order were made, Mircom and Golden Eye would be recipients of personal data, but not controllers and therefore not subject to the more onerous obligations on controllers. Therefore, nothing turned on the GDPR.

In terms of whether the evidence as served by Mircom and Golden Eye justified the order sought, Virgin submitted that it not for a variety of reasons, including there being various defects in the factual and expert evidence.

Mr Campbell agreed with Virgin that the factual evidence was not of the standard that the court was entitled to expect. For example, Exhibits referred to were missing or did not set out the information they claimed to set out and the spread sheet setting out the names and addresses sought by Mircom and Golden Eye had been sent to Virgin by email, but was not actually in evidence before the court, nor was there any explanation of how it had been produced. The expert evidence was not acceptable either. For example, one of the expert reports covering the field of computer software dated back to 2010 and did not comply with CPR Part 35, e.g. it lacked a statement of truth.

Mr Campbell concluded that the defects in both the factual and expert evidence were so fundamental that the applications should be dismissed.

Nevertheless, Mr Campbell went on to consider whether the applicants “genuinely intended” to try to seek redress for the arguable wrongs. This is a general requirement for Norwich Pharmacal relief. Virgin submitted that whatever the evidential position in the Golden Eye case, subsequent events showed that none of the applicants had any genuine intention to pursue infringement actions now. In other words, they had no genuine intention of suing anyone. Instead they intended to send letters to alleged infringers requesting money for settlement of the matter. Therefore, Virgin said, this was all just a “money-making scheme”.

Mr Campbell accepted the applicants’ submission that they could not be expected to sue everyone and that it was not necessarily abusive for them to seek a sum by way of settlement instead of suing, which was higher than that which would be awarded by a court. However, he also accepted Virgin’s submission that in order to perform the difficult and delicate balancing exercise that the law requires, he had to consider whether the applicants still had a genuine intention to try to obtain redress for the infringement, rather than merely setting up a money-making scheme designed to embarrass and coerce as many people as possible (regardless of whether they were actual infringers) into making the payments demanded.

To consider this question, Mr Campbell said that he needed to know more about how the applicants had used the information that they had obtained following the Golden Eye litigation over the last seven years. Further, he needed to know more about the number of letters sent. The applicants’ current evidence did not address this, nor was it information that they had offered to supply. This was a further reason to refuse the applications sought. (Mircom International Content Management & Consulting Ltd v Virgin Media Ltd [2019] EWHC 1827 (Ch) (16 July 2019) — to read the judgment in full, click here).