ISPs Ordered to hand over user details – users not notified of case or given chance to make submissions
The High Court yesterday made an order requiring ISPs to hand over details of 49 alleged filesharers to the music industry. After the first such order, in July 2005, we expressed concern about the procedure which had been adopted. When we learnt about this second application, we wrote to the parties asking them to bring these concerns to the attention of the court. Unfortunately, not all of these points were put before the court and the judgment of Mr. Justice Kelly doesn’t address these issues.
A particular problem is that the decision was made without the users being notified of the action or given a chance to make submissions to the court, despite an English authority recommending that this should be done, and contrary to the practice in the US where this must be done before the user is identified.
This sets a worrying precedent. There are many reasons why a person may wish to remain anonymous online – for example, a whistleblower who seeks to expose corruption or safety issues may be intimidated by fear of retaliation. As a US court recently said:
“setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics … After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution … Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics.”
If the user is not given an opportunity to challenge an application to reveal their identity, there is a real risk that such applications might be abused by plaintiffs in future.
A full account of the hearing follows: