Written by Amanda Tsang
June 26, 2015
Recent studies have shown that Australia has the highest per capita percentage of illegal downloaders in the international online community. These statistics are especially relevant in respect of the recent Supreme Court decision relating to the illegal downloading of the movie the Dallas Buyers Club. The Supreme Court determined that the company producing the movie was allowed to pursue those who had illegally downloaded the movie for damages. This is a precedent setting decision.
In June 2015, a letter to be sent to those alleged downloaders (to be determined by IP address) was circulated online. This letter asks the addressee to accept guilt in relation to the offence and provides a telephone number to call in order to negotiate a settlement. If a person does not accept guilt, they can only do so by nominating someone else.
At the same time, a telephone script for the settlement negotiation has also made the rounds online. The alleged downloader would be required to give various personal information, such as: employment status, annual income and marital status, presumably for the calculation of the settlement. More worryingly, they may be asked questions that could result in admissions to further offences. Obviously, this could lead to further possible charges and heavier penalties.
Finally, the letter states that if no settlement is reached, legal action may be taken against the addressee. It warns that they would be pursued for damages and also for the costs of taking legal action.
Certainly this would then contain this matter in the civil law jurisdiction, but downloading pirate copies could enliven a number of criminal offences. It is relevant then to discuss any issues that would arise if this matter was to extend to the criminal jurisdiction.
If we are going to be looking at this matter from a criminal law perspective, I am skeptical about the authority of these letters, and also concerned about the heavy handed approach taken. It is important to remember that in Australia, individuals have rights, as discussed below, enshrined by the Constitution and also by State and Commonwealth legislation. Naturally we will have to wait to see the final version of the letter and any further action taken before we can comment fully on the validity of the process. However, in the rush to obtain damages, it seems that the author of these letters has potentially overlooked some of those rights.
First, it concerns me that these letters are purporting to assign guilt or liability to an individual for the sole reason that an illegal download is attached to that person’s IP address. Certainly that evidence is circumstantial at best.
Second, all individuals in Australia have a right to silence. This means that if Police or law enforcement officials approach you during the course of an investigation, you can choose to remain silent and not answer any questions (though there are limited exceptions). Legally, this silence cannot be used to make any negative inferences against you in relation to that offence. I would say there is little authority to a letter that states that someone must accept guilt unless they nominate another.
Finally, I only became aware recently of the way these IP addresses were obtained. The Dallas Buyers Club LLC used a piece of software that purports to offer a download of the movie. No downloadable file is actually available, or so the article I read suggested; however, when someone attempts to access the file, it will record their IP address. Interestingly, if there was no download attached it may make the recovery of damages harder to obtain but the criminal aspect remains live because you can “attempt” to commit a criminal offence.
If these were criminal proceedings, my mind would turn to entrapment, the concept of an ‘agent provocateur’, inciting someone to commit a criminal offence. In essence, in NSW, entrapment is not a defence, but it can be a mitigating factor, and quite a strong one, depending on the circumstances of the entrapment, and the level of involvement of this outside ‘agent’.
However in Vuckov & Romeo it differentiates between situations where the involvement of the ‘trap’ was purely to detect or obtain evidence, compared to where it played a more active role and encouraged the person to commit the offence. The question here is then, whether or not the use of this software was actively encouraging the commission of the offence. Alternatively, it could be argued that if this piece of software did not exist, those 4726 individuals would have, typed the same search into the search function, and then accessed another link to obtain the movie. If that is the case, then their level of culpability in the offence can only be mitigated very slightly, if at all.
It remains to be seen what form these letters will ultimately take or what further actions arise from this matter. It is my view at this time, though, that there will be problems with the enforceability of the letters in Australian law. It is very important that people who receive these letters obtain specialised legal advice prior to responding to make sure that their legal rights are protected.