In the aftermath of the highly-publicised DDOS attack against ACS:Law and the data leak that followed, both BT and PlusNet expressed serious concerns to Ministry of Sound and law firm Gallant Macmillan about the proposed Norwich Pharmacal Order (NPO) requiring them to hand over details of alleged subscribers. (For more details of what an NPO is, see Part 1 of this post.) The chronology of what followed was discussed in some detail at the court hearing on Monday 4th October, but before I go through it I’ll set the scene a little.
This application was to be heard by the Chancery Chief Master, Chief Master Winegarten. As with most application hearings it was not in a courtroom but rather his office; fortunately, CM Winegarten’s office in the modern Thomas More building at the Royal Courts of Justice not only commands a nice view but was large enough for the seventeen lawyers and observers I counted. As well as myself observing on behalf of the ORG, the BBC was represented; the British Phonographic Industry – the music industry’s trade association – also sent an observer and I suspect several of the others watching were there on behalf of other ISPs interested in the outcome. My thanks, incidentally, to CM Winegarten, who had apparently briefed his staff that there were likely to be a good number of observers (this is very unusual for an application in chambers!) and to counsel for both sides, who not only were happy with our presence but made a point of asking CM Winegarten to confirm that there were no reporting restrictions.
Having all assembled in front of the Chief Master, we then got first Ministry of Sound’s version of events, and then BT and PlusNet’s. The two sides had a rather different take on exactly what basis the events of the previous few days had unfolded, but after both had had their say – and CM Winegarten had asked some questions to clarify matters – the following timetable emerged.
24th September: The data leak from ACS:Law. Counsel for BT noted the ‘furore’ surrounding this and claimed that this was the point at which BT became seriously concerned as to the security of data handed over in respect of NPOs. In response to CM Winegarten’s observation that BT must have been aware of such concerns already, BT described the ACS:Law leak as a ‘learning step’.
28th September: BT wrote to Ministry of Sound stating that unless it could be satisfied by the latter’s security arrangements it would have to resist the application for an NPO.
30th September: BT followed this up by sending a further letter on Thursday afternoon stating that they intended to oppose the application for an NPO and asking Ministry of Sound to agree there and then that the hearing on Monday 4th October should be adjourned so that both sides could gather further evidence in support of a contested hearing.
It seems that Ministry of Sound did not immediately reply to this and BT concluded by Friday 1st October that it would have to go into Monday’s hearing – hitherto expected to be a formality – prepared to fully oppose the application for an NPO. It would need a proper legal argument and evidence to support it to do that, so BT’s lawyers worked flat-out over the weekend to produce this.
In the end, come the day itself, Ministry of Sound accepted that given the requests for an adjournment and the public interest arising from recent events the full hearing on the NPO would have to be adjourned. Their counsel noted that they did so with reluctance but acknowledged a number of factors that made an adjournment inevitable, including the publicity about ACS:Law. There would be no NPO today, nor even substantial argument about one.
What there was argument about was money. BT had done a lot of work over the weekend in anticipation that there would be a full legal argument, and wanted to be reimbursed by Ministry of Sound for this - to the tune of £52,000. CM Winegarten balked at this, and he pointed out that BT would have had to have done this work at some point anyway, even if the hearing had been adjourned earlier. In the end he did not order Ministry of Sound to pay BT’s costs, although depending on the outcome of the adjourned hearing one side may well end up seeking to bill the other.
In terms of that hearing, it was agreed that it would take place on 12th January 2011. A schedule was agreed whereby BT and PlusNet would submit evidence by early November as to why the NPO shouldn’t be granted; Ministry of Sound would then have a month to consider this and respond, and BT would have to get in its response to that by Christmas. BT did try to ask for longer, citing, for example, the need to get the best advice about the ‘industry standard’ for data security. CM Winegarten pointed out that BT had probably written the industry standard in that respect, and that four weeks ought to be more than long enough!
In the course of all this though there was some intriguing discussion of issues arising from the tracking of file-sharers. For instance, the Chief Master noted that ISPs were being asked to hand over a huge swathe of data for rights-holders or their lawyers to trawl through to determine whether alleged instances of file-sharing were, on the one extreme, lots of users sharing one file, or at the other, one user sharing a lot of files. Could ISPs not, he asked, be set criteria by rights-holders to work out who were the serious offenders and only hand over their details? Ministry of Sound’s counsel claimed that this assumed that there was a minimum threshold of infringement that would be followed up, and said that it was their policy that they would write to everyone alleged to have infringed their rights. For my part, whilst I can see that such a screening exercise would cut down on the amount of personal data to be handed over under an NPO, I can imagine that most ISPs would be very reluctant indeed to be seen to do anything of the kind. It will be interesting to see if we hear any more of this idea.
CM Winegarten also raised the matter of the Digital Economy Act and the powers it would bring in. BT pointed out that Ofcom was still consulting about the Initial Obligations Code, the set of rules that would govern action against alleged file-sharers, and that BT was itself seeking Judicial Review of some of the relevant portions of the Act on the basis that they did not comply with EU law or human rights law.
As for NPOs already previously granted to order it to disclose subscriber details to organisations other than the Ministry of Sound, BT indicated that it would be asking the Chief Master to suspend and review them in light of the arguments it would be making in January. Another interesting admission that came out of this discussion was that BT had a significant volume of disclosure requests from other agencies such as the Police and Security Services, and that even once an NPO had been issued it went into a very long queue. Although the exact timescales weren’t discussed in detail, I got the impression that it can take BT weeks or months to get around to trawling its subscriber records for the details rights-holders seek. As for what happens once rights-holders get them, Ministry of Sound conceded that they had yet to take any legal action in respect of alleged file-sharing after receiving details from other ISPs, although they pointed out that it was not long since they had first sent out letters about this and it would be, in their words, ‘oppressive’ to go to court straight away.
So, what will happen now is that there will be a lot of exchanging of evidence and counter-evidence about the way in which details of alleged file-sharing are gathered and the security measures applied to such data, followed by what all sides admitted would probably be a full day of argument in front of the Chief Master on 12th January. However – and this is a big however – we may not see all of that argument, because Ministry of Sound indicated that they would be asking for some parts of that hearing to be held in private as what they claimed to be sensitive details of their torrent-tracking technology would have to be discussed in detail. Whether this request is granted remains to be seen but it is certainly to be hoped that as much of the next hearing as possible is open to observation, as it will be an important day for deciding the extent to which ISPs can, under the current law at least, be compelled to hand over details of alleged infringing file-sharers.