Warnings over new wave of ACS:Law type 'pay up or else' letters

Porn producer Ben Dover is about to send a new wave of ‘pay up or else’ letters to nearly 3,000 individuals the company says are guilty of illegal file sharing, watchdog Consumer Focus has warned.

A revised letter before action, seen by Solicitors Journal, will tell recipients that there is evidence they have illegally downloaded copyright-protected films and will offer them to settle the claim for a sum to be agreed – not, as the original did, for £700.

Last March film distribution company Golden Eye, which is acting for Ben Dover Productions, sought to secure a Norwich Pharmacal order against O2-Telefonica for the disclosure of users’ personal details.

Following discussions with the judge over the terms of a letter, finally agreed on 31 May, the company will next month start writing to 2,845 individuals whose details are linked to the alleged illegal downloads.

Unlike the speculative invoicing scheme directed by ACS:Law, this latest initiative is coming from the claimant without lawyers being involved, prompting concerns about the lack of redress for consumers.

The SRA’s intervention into ACS:Law put an end to speculative invoicing where it involves lawyers, according to Consumer Focus policy manager Saskia Walzel, but it has left ordinary consumers with nobody to turn to if they want to complain – “but Golden Eye is not a law firm”, she said.

Not a law firm

“The reason speculative invoicing has worked is because it has been difficult to find specialist legal advice on copyright infringement, so we’ve worked with Citizens Advice Bureaux to ensure advisers can give consumers the help they need to respond to allegations,” Walzel continued.

“Without reliable advice there is a risk that recipients of the letters could pay up to avoid embarrassment and make the problem go away, even where they could contest the accusation,” she said.

The draft letter before action agreed with the judge now includes specific provisions about the nature of the evidence obtained by Golden Eye and about the availability of legal advice for recipient who want to refute the claim or negotiate an out-of-court settlement.

The letter says that O2 have agreed to pass on the user’s details to Golden Eye after the company disclosed further evidence that the IP address was associated with the downloads so it could send out the letters and “if necessary bring legal proceedings against you”.

But, it continues: “We should make it clear that the High Court has not yet considered the merits of our claim against you.”

Citizens Advice

It then further clarifies that the letter is sent to the recipient as the internet account holder but that “in the event that you were not responsible for the infringing act outlined above because, for example, another member of your household was the user of the computer, you should make full disclosure to us of the parties at your residence using your internet connection”.

Its final paragraph, added at the judge’s request following representations by Consumer Focus, says that “if you are in any doubt about the contents of this letter and its seriousness, we would recommend that you seek legal advice as a matter of urgency”, and then goes on to give details for Citizens Advice.

Golden Eye was one of 13 companies who brought an application for a Norwich Pharmacal order in March asking the court to force O2 to disclose details of 9,000 users they said had been involved in peer-to-peer file sharing.

The judge, Mr Justice Arnold, rejected other applications but said in Golden Eye and Ors v Telefonica [2012] EWHC 723 Ch that he would consider Golden Eye’s subject to the proposed letter before action being redrafted.

In a drive to curb online piracy a number of organisations hired lawyers to issue similar letters to alleged illegal file sharers.

Andrew Crossley, the sole practitioner behind ACS:Law, was suspended for two years earlier this year, and two Davenport Lyons partners were fined £20,000 and suspended for three months in August last year for their role in a scheme against illegal file sharers.

 

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