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Norwich Pharmacal orders, the GDPR – and porn: Mircom & Golden Eye v Virgin Media

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Norwich Pharmacal orders, the GDPR – and porn: Mircom & Golden Eye v Virgin Media

Postby MrFredPFL » Sat Jul 20, 2019 12:07 am

Story :

The GDPR has had its first brush (to my knowledge at least) with the pornography industry in the Courts of England and Wales. In Mircom International and Golden Eye International v Virgin Media and Persons Unknown [2019] EWHC 1827 (Ch), a judgment of 16 July, the High Court declined to order Virgin Media to hand over the IP addresses of persons who had allegedly downloaded and shared porn films in breach of copyright. It was not, however, the GDPR that saved those naughty “persons unknown”. Instead it was, if I can be explicit about it, the Court’s highly problematic analysis of the GDPR.

First, some background. The case is about companies that make pornographic films the titles of which, unsurprisingly, “leave little to the imagination” (para 7 of the judgment). The companies wish to protect their copyright in those films. They therefore use the services of Mircom and Golden Eye to track down people who have allegedly been downloading those films unlawfully and send them letters demanding payment for copyright infringement. To do that, they need detail of IP address owners. They want ISPs – in this instance, Virgin Media – to hand over details of the registered owner(s) of certain IP addresses identified by the Applicants “in batches of no more than 5000 addresses per fortnight”. Mircom and Golden Eye applied for Norwich Pharmacal orders. Virgin was in formal terms neutral, though it in fact argued fulsomely against the granting of the order.

The first issue for the Court (Recorder Douglas Campbell QC sitting as a Judge of the High Court) concerned the legal framework for granting Norwich Pharmacal relief in this context.

Golden Eye has, in fact, had a similar outing previously: see the litigation culminating in Golden Eye (International) Ltd v Telefónica UK Ltd (Open Rights Group intervening) [2012] EWCA Civ 1740. In that litigation, the Courts had accepted that the persons identified by a Norwich Pharmacal order will have their privacy and data protection rights invaded. It also accepted that they may be exposed to proceedings for infringement, may be caused embarrassment and may (on costs grounds) pay up even if innocent. However, the Court of Appeal concluded that the orders should be granted, in particular because the underlying claimants genuinely intended to obtain redress for the infringement: they were not setting up cynical schemes for extracting money from people regardless of innocence.

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