QC's view raises doubt on online piracy casesLegal opinion offers relief for wrongly accused

18 July 2010

Gavel

The government plans to crack down harder people illegally sharing files online.

UK consumers cannot be held legally responsible for any illicit online file sharing activity which occurs without their knowledge, or consent, on their unsecured wireless networks.

That’s the legal opinion of Roger Wyand QC, a barrister specialising in intellectual property law and joint head of Hogarth Chambers. His opinion will come as a relief to the thousands of people who maintain they have been wrongly accused of illegally downloading and sharing copyright protected material via the internet.

‘Where a third party does manage to use the internet connection of a subscriber without his or her knowledge or consent and infringes copyright, the subscriber will not be liable for copyright infringement,’ Wyand explained.

‘The subscriber could be liable if they knew that a third party intended to infringe copyright and consented to a third party using their equipment to carry out that intention. However, mere negligence in failing to take precautions to prevent such use is not actionable.’

He suggested that as a general rule, it would be sensible for consumers to put in some form of protection – such as password-protecting their wireless network - against unauthorised access.

Wyand’s legal opinion challenges one of the foundations on which legal firms ACS: Law Solicitors (ACS Law) and Gallant Macmillan Solicitors (Gallant) base their volume litigation against those alleged to be file sharing illicitly.

Some of the clients of both firms claim that as the person concerned has been identified as the subscriber to the IP address which was used to illegally download and share their copyright protected material via peer-to-peer (P2P) networks, that person has infringed their copyright.

Both firms claim their clients are entitled to commence civil proceedings but offer people the opportunity to settle the claim by making a payment of approximately £500 in compensation.

Have you received a letter accusing you of illegal file-sharing? Read our advice on how to respond to the accusations

At no point do these letters take into account that the internet connection might have been high-jacked by a third party. Of the hundreds of people who have contacted Which? after receiving one of these letters and denied the allegation, all have had wireless networks which were not password-protected.

Germany and illegal online file sharing 

Wyand’s advice echoes the German Federal Court of Justice ruling in May, which stated that German citizens with unsecured Wi-Fi networks could not be held legally responsible for any third party’s illicit file sharing activity.

However, the court also ruled that they would be held partially responsible if they did not take steps to secure their networks and their account is later identified as one in which an infringing act occurs, by a third party, without their knowledge. It has ruled that German citizens either secure their networks or face a €100 (£86) fine.

Which? responds to Wyand's opinion

Deborah Prince, head of Which?’s legal affairs, welcomed the legal opinion. ‘This provides an insight into where UK law stands on this issue,’ she said.

‘Only one case on this issue has reached the courts [brought by a client of Davenport Lyons] in 2008 where the defendant did not turn up so a default ruling was made. It's still unclear where the law stands on this issue.

‘This opinion offers a clear indication of the direction the courts would probably take if they were confronted with copyright infringement cases where the defendants could show that they had no knowledge of the infringement and their wireless networks were unsecured at the time.

‘We hope this advice will act as a wake-up call to ACS Law and Gallant who are sending out hundreds of letters to people - the majority of whom claim to be innocent and have no idea that their internet connection is being used in this way. This advice throws real doubt on whether they would win if they pursued one of these cases through the civil courts.’

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