Saturday, May 21, 2005

The new test for disclosure of identities after BMG v John Doe

Michael Geist is the source for all information related to the recent CRIA file-sharing decision. If you want any information on the case, just go to

About the privacy aspects of the decision, Michael provides a summary written by Pippa Lawson:

"While I don't doubt that CRIA might come to court with some reliable evidence this time, this decision makes it clear that privacy matters. How clear? Pippa Lawson, CIPPIC's Executive Director, has compiled the following roadmap:

1. Plaintiff must show that it has 'a bona fide claim' against the proposed defendant, 'i.e., that they really do intend to bring an action based on the information they obtain, and that there is no other improper purpose for seeking the identity of these persons'. (para.34)

2. 'There should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the named websites.' (para.35)

3. 'The public interest in disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made' (para.36) and '... caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way' (para.42):

a) the information on which a request for identification is made (e.g., IP address) must be timely; no undue delay between investigation and motion for disclosure (para.43)

b) plaintiffs must not collect more personal information than necessary for the purpose of their claim (para.44)

c) if a disclosure order is granted, specific directions should be given as to the type of information disclosed and the manner in which it can be used. In addition, the court should consider making a confidentiality order or identifying the defendant by initials only (para.45)

** If either (a) or (b) are not met, the court may refuse to make a disclosure order."

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