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Federal Court of Appeal Enunciates Test for ISP Disclosure of Users Identity
On May 19, 2005, Canada's Federal Court of Appeal in the widely anticipated BMG v. Jane Doe case set out the test that must be met for the disclosure of the identities of peer-to-peer Internet users accused of copyright infringement.
In noting that the case illustrates existing tensions between the privacy rights of those who use the Internet and those whose rights may be infringed or abused by anonymous Internet users, the Court dismissed the Canadian Recording Industry Association's appeal by ruling that much of the evidence was hearsay and that there were no grounds for accepting such evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it was not warranted. In addition, the Court noted that the documents being sought by the Plaintiff may be buried in logs and tapes, which are presently not in a readable format.
In rejecting the Motions Judge's test for disclosure, the Court adopted the view that the proper test is whether the plaintiff has a bona fide claim against the proposed defendant and not the more onerous establishment of a prima facie case of infringement. Aside from demonstrating a bona fide claim, the test involves establishing that:
1. the applicant shares some sort of relationship or connection with the third party against whom discovery is sought; and
2. the third party is the only practicable source of information available.
When deciding whether to grant the disclosure order, the Court will give further consideration to:
1. costs incurred by the respondents in assembling the information;
2. whether the public interest outweighs the legitimate privacy concerns of the person(s) sought to be identified;
3. ensuring that privacy rights are invaded in the most minimal way;
4. the length of delay between the time the request for the identities is made and the time the information is collected (the Court was concerned that a long delay would increase the risk that the information would be inaccurate because the IP address in question may no longer be associated with the same individual); and
5. whether the plaintiffs will potentially extract private information not related to copyright infringement in breach of privacy laws.
The Court also stated that an order for disclosure should include specific directions as to the type of information to be disclosed and the manner in which it can be used.
On the issue of infringement, the Court indicated that the Motion Judge's findings as to what would or would not constitute infringement of copyright were premature, therefore, the Court was unwilling to make any such findings while noting that if the case were to proceed further, the case should proceed on the basis that no findings to date on the issue of infringement had been made.
For a copy of the decision, visit: