Singapore ISPs not breaking privacy policy in Dallas Buyers Club crackdown

News this week about a crackdown on illegal torrent activities probably sent several users in Singapore scurrying to recall if they downloaded a copy of Dallas Buyers Club.

Local ISPs including M1, Singtel, and StarHub had been issued court orders to divulge personal information of customers alleged to have downloaded illegal copies of the Academy Award-winning movie. The information was then handed over to a local law firm representing Dallas Buyers Club LLC, which sent letters to the targeted customers with demands for compensation.

Customers peeved that their ISP had revealed their personal information should know their internet service provider had not broken any terms of service agreement, per se.

According to Matt Pollins, digital media lawyer at Olswang Asia, all ISPs operating in Singapore have privacy policies that outline how they will use their customers' personal information, and when these will be shared with third parties. However, they will have to disclose such information if the court instructs that they do so, as was the case in the Dallas Buyers Club suit.

Pollins stressed that the ISPs had not violated any terms and conditions as they were responding to a court order. Their privacy policies typically state that customer information will be handed over when required by a court, he added.

The ISPs also had explained they appointed lawyers to highlight to the court that they had legal obligations to keep customer information confidential and to ensure the court considered whether the evidence--provided by Dallas Buyers Club--was sufficient to compel the ISPs to disclose customer identities.

Should the ISPs first ascertain if their customers had indeed violated copyright laws before disclosing their personal information?

According to Pollins, they are not in a position to do so. Instead, it is the judiciary system that makes that decision.

If a court order was issued, the assumption would be that it had determined the evidence provided by Dallas Buyers Club was sufficient to suggest the individual had violated its copyright.

Pollins explained: "We do not know to what extent the court considered the merits of these cases as we have not seen the court order, but we do know the ISPs appointed lawyers to highlight to the court that the ISPs have legal obligations to keep customer information confidential and to make sure the court considered whether the evidence provided by Dallas Buyers Club was sufficient to compel the ISPs to disclose customer identities.

"The court may or may not have had regard to this, and many other factors, in reaching its decision," he said.

Customers who have received letters from Dallas Buyers Club LLC should not simply ignore the documents, or risk facing a summary judgement in court should the claim proceed in their absence, Pollins said.

He added that these customers should refrain from responding without first seeking legal advice on the best action to take.

"Some customers certainly will argue that they were not the ones who downloaded the movie, but whether this argument succeeds or not remains to be seen," he said. "Some may argue they were not responsible for the downloading or uploading via their IP address and that it was a neighbor or friend. Ultimately, this would be a matter for a court to decide."

The lawyer further noted that Dallas Buyer Club LLC had obtained specific details of each customer and likely would argue that these individuals either downloaded or pirated the movie, or had permitted or facilitated others to do so with their internet connections.

Again, whether this argument will hold out in court remains to be seen.

Calculating damage: how much should it be?

So, how much would customers targeted by Dallas Buyers Club LLC have to pay in damages? And how is this calculated?

Again, this is a grey area for which there are no yardsticks.

"This is a groundbreaking case in Singapore and there is no real benchmark for what the level of damages would be," explained Pollins, who noted that the amount served as compensation for losses the rights owner suffered as a result of the copyright violation.

By that rationale, users who seeded the torrent by uploading the movie online would have abetted additional acts of infringement. In this case, the damage they caused likely would be viewed to be higher than others who simply downloaded the file.

Regardless of such common assumptions, the court will review various factors and is not bound by simple economic assessments of loss suffered by the rights owner.

Targeted customers in the U.S. reportedly received letters from Dallas Buyers Club demanding compensation of up to US$9,000 or face the prospects of potentially paying hundreds of thousands of dollars in damages under court order.

The firm also identified 4,900 Australians who allegedly downloaded an illegal copy of the movie between April and May last year. Local ISPs in the country including iiNet have been fighting the case in court to block attempts to obtain their customer details.

Voltage Pictures, which owns the rights to Dallas Buyers Club, said the amount it was seeking in damages would depend on the severity of the alleged infringements. The company's vice president of royalties, Michael Wickstrom, said to Australian media: "Some of the people we go after have a network of hundreds of films uploading. That's when you're going to see these letters going public, where we've asked for $8,000 or $10,000 or $20,000 or whatever, because we realize this person has every Voltage title, Disney title, Warner titles, whatever.

"We're the first film-maker to say enough is enough. If we don't change the business model, we will fail. We want to continue as a business, but when I see piracy rates in Australia above 50 percent, that's not a business model that can be sustained," Wickstrom said.