The Future of Privacy after Dallas Buyer Club

Thought you can use the internet anonymously?

A recent Australian case has shown that the right to privacy does not necessarily prevent someone finding out your identity in order to make a claim against you.

If an individual or entity has a right to relief against a prospective respondent but cannot adequately identify that prospective respondent, they may seek an order for discovery to identify the respondent under rule 7.22 of the Federal Court Rules 2011 (Cth) (the Rules).

To exercise this rule the court must be satisfied that:

1. the prospective applicant may have a right to seek relief against a prospective respondent;
2. the prospective applicant is unable to ascertain the description of the prospective respondent; and
3. another person knows the prospective respondent’s description or has control of a document that may help ascertain the prospective respondent’s description.

Generally, this would be an uncontroversial exercise of court power allowing a prospective applicant access to information that will give them an opportunity to seek the relief to which they are entitled. However, this power under the Rules became a hot topic when the US Corporation, Dallas Buyers Club LLC (DBC), asked the court to order six Australian Internet Service Providers (ISPs) to provide information about their customers that would allow DBC to pursue action against ‘pirates’ who they claim breached copyright laws by unilaterally sharing the movie “Dallas Buyers Club”. Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.

The ISPs attempted to reject DBC’s request to access their client records and presented a number of arguments including that:

1. the prospective respondents did not breach the Copyright Act 1968 (Cth) and therefore DBC did not have a right to relief;
2. providing the information held by the ISPs may not identify the actual person who had downloaded the film and would therefore not help ascertain the prospective respondent’s description;
3. if the information was provided to DBC, they might engage in ‘speculative invoicing’ – where a prospective applicant sends a letter of demand to a prospective respondent with the threat of pursuing legal action if the prospective respondent does not pay a specified sum; and
4. the Telecommunications Act 1997 (Cth) contains privacy provisions preventing the ISPs from releasing the information requested by DBC.

The Federal Court rejected these arguments, although did make an order to prevent speculative invoicing, and ruled that the ISPs must provide the names and residential addresses of each of their customers who had been identified as a prospective respondent due to downloading “Dallas Buyers Club”.

The effect this ruling has on privacy in Australia, and the circumstances when privacy provisions may be overruled, remains to be seen. Amendments to the Copyright Act 1968 (Cth) in June 2015 mean that applications can be made to the Federal Court for an injunction to prevent accessing websites which infringe copyright.

With technology becoming the more prominent means of watching movies and TV shows, it will be interesting to see how the legislation keeps up with current practices.