Mircom International Content Management & Consulting Ltd & Ors v Virgin Media Ltd & Anor

A Norwich Pharmacal application requires a good arguable case, followed by an individualised and proportionate assessment. The applicant bears the burden of showing that disclosure should be ordered. The court must consider whether the applicant genuinely intends to seek redress rather than operate a scheme designed to coerce payment.

The possibility that an order may identify residential subscribers does not automatically determine the status of IP addresses as personal data. Where disclosure is compelled by court order, the recipients are not thereby data controllers merely because they receive the information. Fundamental defects in fact or expert evidence justify refusing relief. Earlier orders made despite evidential defects do not establish a general practice of permitting later rectification.

Mircom and Golden Eye, together with film production companies, sought Norwich Pharmacal orders requiring Virgin Media to disclose the names and addresses of residential broadband subscribers associated with IP addresses allegedly used to download pornographic films.

The first applicants were not copyright owners, while the other claimants asserted copyright ownership. Virgin opposed the applications, relying on the approach adopted in the 2012 Golden Eye litigation, the Supreme Court decision in Rugby Football Union v Viagogo [2012] UKSC 55, the GDPR, the Data Protection Act 2018, and alleged defects in the evidence and the applicants’ genuine intention to pursue infringement claims.

The central issues were whether the 2012 approach remained applicable and whether the evidence justified the orders sought.

1. Applications dismissed. The applicants failed to establish that the orders should be made. The burden remained on them despite Virgin’s extensive participation in the proceedings.
2. A Norwich Pharmacal claim seeks final relief. The applicant must establish a good arguable case and satisfy the other applicable conditions. The proportionality assessment is of considerable importance and must be conducted individually in each case. The court must take account of the privacy and data protection interests of persons identified, the risk of proceedings against innocent persons, and the possibility of embarrassment or disproportionate settlement pressure.
3. The approach approved in the 2012 Golden Eye litigation remained applicable. Rugby Football Union v Viagogo [2012] UKSC 55 had expressly approved the relevant statement of approach and had not suggested that the result in Golden Eye was wrong. The GDPR did not alter the outcome. The court assumed that the IP addresses were personal data, but held that disclosure under a court order would make the applicants data recipients rather than data controllers. The applicants’ proposed undertaking would in any event have addressed the GDPR issues.
4. The fact and expert evidence contained fundamental defects. The relied-on IP-address spreadsheets were not properly in evidence, and the expert material was outdated, unsupported by proper statements of truth, unclear as to instructions and software, or otherwise non-compliant. The court declined to permit the applications to proceed subject to replacement evidence. The defects could not be treated as a routine technicality merely because relief had been granted despite defects in the earlier Golden Eye litigation.
5. The licence arrangements did not prevent the claims by the copyright-owning claimants. The first-instance Golden Eye decision had held that Golden Eye’s lack of title to sue in its own name did not bar claims by the other claimants, and the same conclusion applied here. Evidence gathered in Germany was not objectionable where the alleged infringing act identified by the software occurred in the United Kingdom.
6. The applicants also failed to provide sufficient evidence of a genuine intention to seek redress. The court needed information about how information obtained under earlier orders had been used, including the number of letters sent, settlements reached and proceedings issued. The applications therefore failed independently on that ground.

The court declined to prescribe generally what information would suffice in a future application and reserved ancillary matters, including costs, for a later hearing.