Recent ‘expanded’ disclosure order shows ‘worrying’ trend: expert

A recent Federal Court order for two internet service providers to disclose the personal information of alleged copyright infringers diverged from previous precedent by expanding the type of information that is allowed to be released -- a cause for concern, according to one expert. “There is supposed to be a limit on the amount of personal information going out to applicants,” David Fewer, a lawyer at the Canadian Internet Policy and Public Interest Clinic (CIPPIC), said in an email, referring to rightsholders who request these orders. That recent order was delivered in mid-November, when a Federal Court judge said Shaw Communications Inc. and Bragg Communications Inc.’s Eastlink must hand over the personal information of alleged infringers of Japanese comics publisher Shueisha Inc., which filed the application for five IP addresses this summer. In it, the judge ordered the disclosure of the customer’s name, mailing address, email address, billing information and payment processing information “other than any account number(s), date of birth, telephone number, and IP addresses.” But that’s in contrast to previous orders handed down by the Federal Court in seminal cases in this area of copyright. In a pivotal case involving the disclosure of personal information in 2005, the Federal Court of Appeal ruled in BMG versus Doe that “caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way. “If a disclosure order is granted,” the 2005 court decision continued, “specific directions should be given as to the type of information disclosed and the manner in which it can be used.” That case laid the groundwork for most of the similar cases that followed, including the most recent high-profile one in Voltage Pictures LLC v. John Doe in 2015. “The more recent order definitely represents an expansion from what the Court of Appeal required” in those previous cases, noted Fewer, whose CIPPIC has been involved in both the 2005 and 2015 cases. “The trend is worrying,” Fewer added. In the 2015 Voltage decision, the Federal Court put in place considerations that would balance privacy and intellectual privacy rights in disclosure requests. In that decision -- citing cases in Canada, the United States and the United Kingdom -- the court said Norwich orders, as they are known, must limit “the information provided by the third party by releasing only the name and residential address but not telephone numbers and e-mail addresses.” Then in 2016, Federal Court judge Keith Boswell ordered Rogers Communications Inc. to disclose the name and address, but not the email or phone number, of the alleged infringers to Voltage. The order drafted by Shuiesha, which went beyond just the name and home address of the alleged infringers, went unchallenged by Eastlink and Shaw. Shaw declined to comment and the Eastlink did not respond to a request for comment. But Jay Kerr-Wilson, a leading IP lawyer who has represented the telecoms on similar files, said “there is no model that judges have to use.” Generally, he said, the applicant will bring forth a draft order and if it isn’t contested, then “it would not be unusual for the court to issue” it as drafted, Kerr-Wilson said. “While this does result in a case-by-case approach, generally there is a tendency to harmonize language for orders that are similar in nature,” he added. Recently, the Federal Court said that Rogers can charge $35 an hour, following a Supreme Court ruling that said telecoms can bill a reasonable fee to fulfill their part of the disclosure order. It’s unclear what kind of extra work the retrieval of this additional personal information may have on the process or if it opens up disclosure to new issues. The federal government has been trying to close some of the gaps left over from the introduction in 2015 of the notice-and-notice regime, which requires internet service providers to forward warning notices to subscribers who’ve been identified as infringing on a rightsholder’s copyright. It has so-far pledged to clamp down on settlement demands in notice letters. The Copyright Act is currently under review. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

Recent ‘expanded’ disclosure order shows ‘worrying’ trend: expert

News | December 13, 2019

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