In this post we’ll take a look at the case of Golden Eye (International) Ltd & Anor v Telefonica UK Ltd , which was handed down from the High Court Chancery Division yesterday (26 March 2012). This case concerns the attempt by Golden Eye (International) Ltd & Anor (“the Claimant”) to force Telefonica UK Ltd (also known as “O2”) (“the Defendant”) to disclose the identity of 9,124 IP addresses through the granting of a “Norwich Pharmacal” order.
The facts in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd
The Defendant provides a number of services in the UK but the service relevant to this case is its provision of internet services to customers as an Internet Service Provider (“ISP”). The Claimant believes that copyright in a number of its works has been infringed by customers of the Defendant, primarily by sharing the Claimant’s copyrighted work over Peer to Peer (“P2P”) networks. The Claimant is not alleging any tort being committed by the Defendant but is seeking disclosure of the identity of the identity of 9,124 of its clients that match the IP addresses provided by the Claimant. The Claimant is therefore seeking an Order from the High Court known as a “Norwich Pharmacal” Order. However, a key consideration for the Court in granting such an Order is the balancing of the various rights of both those seeking the Norwich Pharmacal Order and those provisionally subject to the Norwich Pharmacal Order.
The law relating to Norwich Pharmacal Orders
Norwich Pharmacal Orders may be granted if the following five conditions (espoused in Rugby Football Union v Viagogo Ltd) are satisfied:
- That an arguable wrong has been committed against the Claimant
- That the Defendant is mixed up in the arguable wrong
- That the Claimant is intending to seek redress for the wrong
- That the disclosure of the information which the Claimant required is necessary for it to pursue that redress; and
- That the Court is satisfied that it should exercise its discretion in favour of granting relief
The High Court’s decision in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd
The High Court considered that the test in Rugby Football Union v Viagogo Ltd had been met. An arguable wrong had been committed against the Claimant as its rights in its copyrighted work had potentially been infringed by clients of the Defendant. The Defendant was (and possibly still is) mixed up in the arguable wrong as its clients potentially had (and potentially still are) sharing the copyrighted works through the internet service provided by the Defendant. Golden Eye (International) Ltd & Anor are attempting to seek redress for the arguable wrong – this much was clear from its “speculative invoicing” draft letter and that it was attempting to address alleged infringements of its copyrighted work. The High Court further believed it absolutely necessary for the Claimant to pursue the claim that the information that the Defendant possesses be disclosed, and also that the granting of the Norwich Pharmacal Order was proportionate in the circumstances.