Friday, January 11, 2013

Voltage Pictures Mass Litigation: What is Teksavvy's Task?

Richard Westall's Sword of Damocles, 1812
In the current Voltage Pictures litigation pending in the Federal Court, it’s remarkable but understandable that the focus has shifted from Voltage to Teksavvy.  It’s a fair question as to why Teksavvy won’t oppose the Voltage motion for disclosure en masse of the names and addresses of 1 or 2 thousand of their customers. Shaw and Telus successfully stood up for their customers in 2004.

And why am I concerned about all of this now? It’s because we have a good balance in Canada in terms of the interplay of the Copyright Act, PIPEDA, and the Federal Court Rules. Many people, including me, put in a lot of effort in 2004 and 2005 to achieve this balance. It has apparently succeeded in discouraging to date the kind of unsavoury "troll" activity that we have seen in the USA and UK. But this balance only works if everyone plays their part.

To update, here’s an article in today’s National Post by Christine Dobby, with quotes from me and David Fewer, of CIPPIC. David is quoted as saying about Voltage’s material:
“It’s hearsay evidence. There’s very little in that affidavit that they’ve filed in support that gives us confidence that they’ve met the legal burden,” Mr. Fewer said.
If David is right, it would likely be simple, straightforward inexpensive and even easy for Teksavvy to successfully oppose this disclosure motion. This would be a win/win for Teksavvy and its customers. This would not mean that Teksavvy is getting involved in the “merits” of the case. Protecting privacy in no way amounts to endorsing piracy.

Teksavvy’s customers are indeed very “savvy”.  See the hundreds of questions and comments, many of them very perceptive and well informed, on Teksavvy’s CEO Marc Gaudrault’s statement as to why his company won’t oppose the disclosure motion

Generally speaking, the real issue now is under what circumstances, if any, an ISP is expected or maybe even required to take reasonable steps to safeguard its customers' privacy. If an ISP can successfully and inexpensively oppose an inadequately documented attempt to breach its customers’ privacy, then why should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA federal privacy legislation to protect its customers’ privacy. That presumably does not mean simply telling them that their privacy is about to breached, that they are on their own and are free to get a second mortgage and hire their own lawyer.

ISPs are paid a lot for their services, and one part of their job is to live up to their PIPEDA obligations. ISPs customers pay $25, $50, $60, $80 or more a month and part of their expectation, beyond fast and reliable service, is an expectation of privacy and an expectation that their privacy will be safeguarded – especially if an ISP promotes this aspect to get and retain customers.

In the current case, at the very least and to be as polite as possible, it’s completely unrealistic to suggest that those who may be sued by Voltage should retain their own counsel at this stage. Any such person has no legal status at this point in the litigation and the legal and procedural issues they would have to deal with (such as preserving their anonymity at the peremptory state) are unmapped and much more complicated than anything Teksavvy would need to deal with. Indeed, Teksavvy’s task would apparently be quite simple if CIPPIC is substantially right as quoted today and in its earlier submissions to the Court in its letter dated December 14, 2012 here and its December 21, 2012 motion to intervene.

All that Teksavvy would need to do  – and the road map is very clear and the road well paved - is simply to demonstrate to the court, if it is the case,  that Voltage’s material is inadequate from an evidentiary standpoint and that Voltage does not sufficiently demonstrate the requirement of a bona fide intention to actually litigate.

Generally speaking, it is an interesting question as to whether any putative mass litigator can seriously intend to start 2,000 actions, which would mean 2,000 statements of claim, with a registry filing fee of $150 each, if the claims are of the nature set forth by Teksavvy in the initial statement of claim so far. It would be astonishing if the Court were to allow one plaintiff to sue hundreds or thousands of individuals at once in this type of action, since there will be different facts, different defences and different damages (if liability is proven) in each situation. And the damages would max out at $5,000 for each defendant for non-commercial activity.

It is sufficient if they show a bona fide claim, i.e. that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons. (emphasis added).

This presumably does not mean simply getting names and addresses and using the insincere threat of an action as a faux Sword of Damocles to extract substantial settlements en masse.

In this or any other similar situation to that of the BMG case, the party seeking disclosure must show that it meets the “bona fide” test and that it has sufficiently reliable non-hearsay evidence to justify the provision of thousands of names and addresses of persons whose privacy will be sacrificed and the consequences of wrongful identification can be enormous.

Is the material adequate in this case? I make no comment on that issue. That’s for the Court to decide. CIPPIC has indicated its position on this. But CIPPIC can at most be an intervener, and even if allowed to intervene, may be permitted only a limited role with no right to cross-examine. Anyway, CIPPC cannot play this role in every case.  That’s not CIPPIC's job.  It’s an ISPs job to under the PIPEDA privacy legislation to safeguard its customers' personal information.  And ISPs get well paid to do so.

To sum up, if the material does not provide adequate, non-hearsay evidence to show the reliability of the investigation and if there is not a bona fide intention of pursuing litigation, then the names and addresses should not be provided.

If Teksavvy could successfully oppose this motion and does not do so, its customers are going to have lots of questions. This could also send a signal that if an ISP as savvy as Teksavvy won’t ever oppose these types of disclosure motions in order to stand up for its customers rights under PIPEDA, then other ISPs also needn’t do so. And then, it could be open season for mass litigation and “troll” activity in Canada.


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