Media CAT Scratches The Norwich Pharmacal Order

In MediaCAT v Adam et al, His Honour Judge Birss considered the appropriateness of the Norwich Pharmacal Order and when it should be used, as he noted that there is a potential difficulty with the Norwich Pharmacal process: In short the judge was concerned about the lack of safeguards on the use of information obtained under these orders. In this case MediaCAT and their lawyers ACS:Law conducted a letter writing campaigning alleging infringement of copyright when they knew they could not be certain the named user of the address was the infringer. The infringer if any could be someone else in a home or office, or indeed a total stranger if they had accessed a wireless network, in short as the judge said "MediaCAT don't know who [infringed], and know they don't know who [infringed]."1 Consequently the judge was critical of the use of the Orders and has urged better controls.

MediaCAT v Adam et al [2011] EWPCC 6 came before the Patents County Court following ACS:Law's sending out of 'speculative invoicing' letters to people accused of illegally downloading content on behalf of its client MediaCAT. The recipients were known to MediaCAT only through the unique internet protocol addresses that are assigned to particular internet connections. Having used a monitoring service to link each address to an illegal downloading of copyrighted films, an application was made for Norwich Pharamacal Orders, to have the Internet Service Providers ('ISPs') disclose the actual names and addresses of the people who used the internet addresses. Chief Master Winegarten granted the Orders and MediaCAT, through ACS:Law, began a letter-writing campaign to tens of thousands of names identified through the Orders, claiming £495 from each individual for breaching copyright. In 2009 and 2010 MediaCAT, acting on behalf of the copyright owners for an adult film, began the letter writing campaign to the names identified through the Orders. In that process ACS:LAW wrote letters to tens of thousands individuals, naturally causing great distress to the recipients. Indeed as Judge Birss noted in paragraph 21 of his judgment; "[The Patents County] court's office has had telephone calls from people in tears having received correspondence from ACS:Law on behalf of MediaCAT."

The letters asserted that MediaCAT was a copyright protection society (which it is not and was therefore misleading) with exclusive rights granted by the copyright owner to bring proceedings (again this was misleading because MediaCAT did not have the rights purported to be held). As Judge Birss noted the letter would be understood by many people as a statement that they have been caught infringing copyright in a pornographic film, that MediaCAT has evidence of the infringement and that a court has already looked into the matter (a copy of the Order of Chief Master Winegarten...