Research carried out for the Strategic Advisory Board for Intellectual Property (“SABIP”) has found that seven million people in the UK are involved in “illegal downloads”. The report suggests that people on one file-sharing network had free access to £120 billion of material. SABIP’s view is that it may be hard to change attitudes towards downloading in the light of the ease with which it can be done, especially at no cost to the downloader. Internet Services Porviders (ISPs) continue to voice the view that it is not their job to police the internet.
We do not believe that it is a defensible position for ISPs to avoid all responsibility. Our view is that, under existing legislation (section 35, Data Protection Act 1998), personal data can be given to rights holders for the purpose of prospective legal proceedings. Citing agreements with customers, ISPs are resistant to using this exception to the data protection legislation. The current practice, which involves the rights holder seeking an order for pre-action disclosure under CPR 31.16 (a “Norwich Pharmacal order”) is a resource-heavy and expensive process. Consequently, this can lead to a chilling effect on legitimate actions to deal with illegal file-sharing. Is it time for the Government to act and compel the ISPs to take this simple step that they are able to do under existing law?
