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Wednesday, 11 January 2012

AMP v Person's Unknown misreporting. Prosecuted for breaching an injunction you didn't even know about? Not likely!

The Daily Mail has gone to town on a story which broke 21 days ago.  Their reporting could leave the reader under the impression that the law is once again an ass and that ordinary internet users could find themselves accidentally on the wrong side of an injunction.

The problem here? The law is not an ass and the injunction makes a lot of sense (yes, I did write that and no, my blog hasn't been hacked).

The case is quite nuanced.  Professor Andrew Murray has an excellent description of the facts of the case on his blog.

In summary, a lady had her mobile phone stolen and the phone contained sensitive personal pictures. Since there is no public interest whatsoever (the lady is not famous in any way) the judge ruled her identity can be kept secret, hence she's known as AMP in all court papers.

The lady was allegedly harassed, threatened and blackmailed in relation to the pictures.  The pictures were removed from certain websites.  The pictures eventually ended up on a torrent.

The court found the stolen pictures circulating were both a breach of the lady's ECHR Article 8 rights to privacy plus could also be restricted under the harassment claim. Again, read this directly from Andrew Murray's blog.

Instead of attempting to block the torrents (not practical IMO), the court took advice from an expert witness (Murray) and decided to go after the seeders (uploaders).  And from my reading of the ruling this won't be done in heavy and ham-fisted fashion since the uploaders could be forgiven for not knowing the pictures were stolen and subject to an injunction.

Yet the Daily Mail coverage leaves the reader under the impression that the mere possession of the pictures is a criminal offence:
"... anyone who downloads the explicit images using a BitTorrent ‘peer-to-peer’ file-sharing service could face prosecution."
(my bold)
"Unlike other injunctions, which require lawyers to go back to court to serve a contempt of court order againt those who flout the rulings, downloaders face immediate arrest."
(my bold)
From my reading of the ruling, available here, clearly this is not the case.  The injunction applies to:
[Para 50] ... those people in possession or control of any part or parts of the files listed in Schedule C to the order who are served with this order
(my underscore)
So it's unequivocal that the injunction does not apply to the general public.  How could it, when they are unlikely to have any reason to know the pictures were stolen?

The ruling then goes on to list the obligations on those served with this order:
(1) shall immediately cease seeding any BitTorrent containing any part or parts of the files listed in Schedule C of this Order.
(2) must not upload or transmit to any other person any part or parts of the files listed in Schedule C of this Order.
(3) must not create any derivatives of any of the files listed in Schedule C of this Order.
(4) must not disclose the name of Claimant (or any other information which might lead to her identification) or the names of any of the files listed in Schedule C of this Order.
No mention of "immediate arrest" or "prosecution" as per the Daily Mail article.

Whilst I'm yet to be convinced that such an approach will cause seeding of the file to collapse, and I'm a bit worried that publicity surrounding the case may cause a Streisand Effect (Andrew Murray thinks not), looking at the overall harm equation this order is pretty kind on civil liberties and web freedoms.

It doesn't attempt to impose a futile blocking order, it is sensitive of the rights of the downloaders, and the lady at the centre of the story clearly has rights which must be balanced against the rights of those torrenting the file.

Anyone torrenting the file faces having their privacy infringed slightly, since lawyers acting for AMP would need to serve an order, known as a Norwich Pharmacal, (CORRECTION 12-Jan: under Civil Procedure Rules 31.17) on his or her ISP to get their mailing address (or email address, since I believe court orders can be served over email).

The order will be served, and only if the terms of the injunction are not met will court action ensue.

Now, here comes a small snag, but I'm prepared to reserve judgement. Let's say the person seeding the torrent is not the ISP account holder.  The account holder faces a grilling for being in breach of the injunction yet could potentially be unaware of the activity - someone else could be using the connection and the account holder is unaware of the file sharing.

Let's wait and see how this plays out, but for now I'm not concerned about this order.


1 comment:

  1. Actually, the "immediate arrest" comment is to be seen on the web site of the solicitors who acted for the claimant in this case.


    The statement there appears to make technical and legal propositions which could do with clarification.


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