EMI Records (Ireland) Ltd v Eircom Ltd

• Jurisdiction: Ireland
• Judgment Date: 08 July 2005
• Date: 08 July 2005
• Docket Number: [2005 No. 2014 P]
• Court: High Court

[2005] IEHC 233,

High Court

[2005 No. 2014 P]

EMI Records (Ireland) Ltd. v. Eircom Ltd.

EMI Records (Ireland) Limited, Sony BMG Music Entertainment (Ireland) Limited, Universal Music Ireland Limited and Warner Music Ireland Limited

Plaintiffs

and

Eircom Limited and BT Communications Ireland Limited

Defendants

Cases mentioned in this report:-

BMG Canada Inc. v. Doe [2005] F.C.A. 193.

Megaleasing U.K. Ltd. v. Barrett (No.2) [1993] I.L.R.M. 497.

Norwich Pharmacal v. Customs & Excise [1974] A.C. 133; [1973] 3 W.L.R. 164; [1973] 2 All E.R. 943.

Practice and procedure - Discovery - Action for discovery - Intellectual property - Infringement of copyright by unknown internet subscribers - Disclosure of names of subscribers sought from defendants - Confidentiality - Whether sufficiently clear proof of wrongdoing - Whether duty to give full information by way of discovery - Whether defendants' duty of confidentiality to subscribers overridden where prima facie evidence of wrongdoing by those subscribers.

Plenary summons

The facts are summarised in the headnote and are more fully set out in the judgment of Kelly J., infra.

By plenary summons dated the 9th June, 2005, the plaintiffs sought an order for discovery.

By order of the High Court dated the 4th July, 2005, the matter was transferred to the commercial list for hearing. The court dispensed with the delivery of pleadings and ordered that the matter proceed by way of affidavit evidence only.

The matter was heard by the High Court (Kelly J.) on the 8th July, 2005.

The plaintiffs were assigned the Irish copyright of a large number of sound recordings. Evidence was given that certain computers connected to the internet via the defendants' facilities had made available to the public a significant volume of the said sound recordings. The plaintiffs had recorded the internet protocol addresses of a number of persons alleged to have infringed their copyright and they sought the names and addresses of those persons from the defendants.

Held by the High Court (Kelly J.), in ordering that the defendants disclose to the plaintiffs the names, postal addresses and telephone numbers of certain registered owners of internet accounts, 1, that there was a prima facie demonstration of a wrongful activity, being the infringement of the plaintiffs' copyright, by the subscribers of the defendants. The court could require the disclosure of identity and other information held by a third party concerning an alleged wrongdoer to the wronged person. The identity of the subscribers was not known to the plaintiffs but was known to the defendants.

Megaleasing U.K. Ltd. v. Barrett (No. 2) [1993] I.L.R.M. 497 and Norwich Pharmacal v. Customs & Excise [1974] A.C. 133 followed. BMG Canada Inc. v. Doe [2005] F.C.A. 193 approved.

2. That a right to confidentiality, whether arising by statute, by contract or at common law, could not be relied on by a wrongdoer or a person against whom there was evidence of wrongdoing to protect his or her identity. The right to privacy or confidentiality had to give way where there was prima facie evidence of wrongdoing. The right to confidentiality could be safeguarded by undertakings given by the plaintiffs that the information disclosed would be solely used for the purpose of seeking redress in respect of the infringement of the copyright in sound recordings.

Ex tempore

Kelly J. 8th July, 2005

1 In 1973 the House...