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The Courts only Ben Dover after careful consideration

It’s an easy headline to write – court backs porn mogul in his claim against an Internet Service Provider and orders the release of subscriber’s personal, private information.

The war between copyright owners and file sharing (or peer to peer sharing) individuals has been waging for a few years.  Internet Service Providers (ISP) find themselves caught in the middle as they want individuals to subscribe and use their services but then hold private information like names and addresses that the copyright owners need to continue their fight.

The latest battle to have gone through the courts has been reported recently.  Golden Eye (International) Ltd v Telefonica UK Ltd has been reported correctly in the law reports here and not quite so accurately by the Daily Mail here.

However, things are not quite as they seem.

We live in an adversarial jurisdiction.  This means that in any given case before the court (generally speaking) there are two people arguing against each other in front of an independent judge who decides who is right.

In this case, however, there was no real dispute between the claimant, Ben Dover and friends, and the defendant, O2 or Telefonica.   O2 had no real interest in defending the claim and so was quite happy to roll over but could only do so with an appropriate court order.

Therefore, the parties went off to court with an agreed order.  The parties were so chummy that the Claimant did not use solicitors and the Defendant did not bother turning up.  Therefore, the judge had the choice of 1. Rubber stamping the piece of paper before him and getting an early lunch or 2. Asking awkward questions and looking into why everyone was playing along so nicely together.

I am very pleased to announce that he took the second option and ordered that Consumer Focus get involved to fight the corner of the ‘intended defendants’ i.e. those individuals whose IP addresses were in Ben Dover’s little black book (how they got there is a question for another day).

Ultimately, the judge did order disclosure of the IP addresses. I know many people will be disgusted that any information will be released at all but I would suggest that the interesting thing about this case is not the final order but how it was reached.

The judge dismissed the proposed threatening letters that Ben Dover wanted to send.  This means that it will be harder for threatening, effectively blackmailing, letters to be sent. The judge also only made the order after properly considering various Data Protection and Human Rights Act provisions.

Therefore, I am happy to report that the adversarial process worked and justice was seen to be done, even if the Daily Mail didn’t quite realise it.

Mark Baldwin

mark@macnamaraking.com

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