The High Court of Justice’s Technology and Construction Court recently ruled on whether relief could be sought against unknown “seeders” of BitTorrent files in AMP v. Persons Unknown. In June 2008, the claimant AMP either lost or had her cell phone stolen. The phone had a digital camera which had been used to take sexually explicit photos of the female owner for her boyfriend at the time. Shortly afterward, the photos were uploaded online, and attached both the claimant’s name and Facebook profile. The images were removed after AMP contacted the online media host, but not before a man contacted her and threatened to distribute the pictures more widely, including to her friends, if she did not add him as a “friend” on Facebook. A few months later, in November 2008, the pictures were uploaded to a BitTorrent site with her name attached and have been downloaded an unknown number of times.
The Court noted that the BitTorrent technology involved in this case brings about complex concerns. Since torrent files are based on the idea of a “swarm” of users uploading and downloading pieces of one file simultaneously, there are potentially many more users downloading and sharing than in the more straightforward peer-to-peer process or single website hosting files. Some of the ways that were suggested to the Court, on behalf of the claimant, for at least curbing the prevalence of the photos were tracking the IP addresses of those sharing the torrent, filtering the claimant’s name from search engines in connection with torrent sites, or having ISPs block access to those torrent sites hosting the file.
The claim was brought against “Persons Unknown”, since none of the users who seeded the files were identified by their IP addresses. Claiming against users yet to be identified was required, AMP argued, because the number of seeders, and therefore potential defendants, would be constantly increasing over time. The reasoning is that “by identifying the class of persons unknown by reference to their particular characteristic, namely any person in control of any part or parts of the relevant files containing the relevant digital photographic images, would be a sufficient description of the Defendants to enable them to be served with any order which the court might make.” The Honourable Mr. Justice Ramsey was persuaded by this argument, and agreed that the case was appropriately brought against “Persons Unknown”.
AMP was seeking injunctive relief under two separate acts dealing with invasion of her privacy (the Human Rights Act 1998) and harassment (the Protection From Harassment Act 1997). In regards to the claimant’s privacy, Mr. Justice Ramsey had to consider whether she had a reasonable expectation of privacy when it came to the photos on her phone. Mr. Justice Ramsey stated that “in this case the circumstances in which the photographs were taken, the nature and purpose of the intrusion caused by the distribution of the photographs, [and] the absence of consent” all made a strong case for AMP having a reasonable expectation of privacy. This expectation of privacy, however, still needed to be balanced with the freedom to receive and impart information without interference which is also provided by the Human Rights Act. For Mr. Justice Ramsey, it was clear that the claimant’s right deserved to take precedence in this situation. Furthermore, since AMP was found to be “likely to establish at trial that publication should not be allowed” she was granted interim relief through an injunction.
Regarding the harassment claim, Mr. Justice Ramsey felt that the situation was such that it met the six factors previously established in Dowson v. Chief Constable of Northumbria Police to make out a claim of harassment:
(1) conduct which occurs on at least two occasions,
(2) targeted at the claimant,
(3) calculated in an objective sense to cause alarm or distress and
(4) objectively judged to be oppressive and unacceptable,
(5) “oppressive” and “unacceptable” depending on the social or working context in which the conduct occurs
(6) with special consideration of the difference between conduct that would actually be harassment and conduct that is simply unattractive or unreasonable.
Mr. Justice Ramsey therefore concluded that the claimant was to be granted relief both for breach of her right to privacy and harassment. This entitled the claimant to an interim injunction to prevent the distribution of her images via any torrent site or through any other use of a BitTorrent program.
Perhaps the most newsworthy part of this case is in the terms of the interim injunction that Mr. Justice Ramsey ordered, since those terms apply to the still unidentified “Persons Unknown”. The order requires such persons to:
(1) immediately cease seeding any BitTorrent containing any part or parts of the files in question
(2) not uphold or transmit to any other person any part or parts of the files
(3) not create any derivatives of the files
(4) not disclose the name of the claimant or information that may lead to her identification, or the names of the files.
Professor Andrew Murray, who actually provided witness statements in the case, expressed optimism that the order would be effective, largely based on the assumption that most of the seeders would be within the jurisdiction of the Court. Professor Murray has some reservations, however, about whether the decision means that BitTorrent content can be regulated. A case comment from the London, England law firm Aslan Charles Kousetta sees a possibility of users of social networking sites like Twitter and Facebook being impacted by this decision in the future.
What remains to be seen is whether the order does in fact deter users from downloading the torrent in question. Practically speaking, such a deterrent effect would be difficult or impossible to actually measure. The goal of the Court in this case may have really been to scare away potential offending users, while not necessarily expecting to reveal IP addresses and track down seeders.
Another issue may be the fact that the Court’s jurisdiction cannot possibly cover all possible seeders, as anyone with an Internet connection and the proper software can download the torrent file in question. Professor Murray has stated that the goal is not to “close down all seeders[,] just enough to turn the tap to a trickle.” The underlying assumption is that most of the seeders will be people with connections to AMP, and therefore within the jurisdiction of the Court. It would seem that, while this decision may act as a deterrent in this particular instance, its applicability may be limited when a torrent file attains global popularity, (such as in the context of a world-renowned celebrity).
Brent Randall is a JD candidate at the University of Ottawa.