Anyone who understands The Pirate Bay, BitTorrent and the viral nature of file-sharing will appreciate just how difficult it is to have content taken down. So what can you do when previously private explicit photos of you appear online? For one young lady it seems that no effort was too big or too costly, as court papers from this fascinating case reveal.
During August 2007, ‘AMP’ used her cellphone to take explicit pictures of herself. It was a decision she would later regret, and its effects would end up costing a significant amount of money to mitigate.
Whilst at University in 2008, AMP’s phone was either lost or stolen. Shortly after the images it contained appeared on an unnamed file-hosting service and these were linked by someone to her Facebook account. Although Facebook removed them, it was clear that the situation was developing – into blackmail.
AMP was contacted personally on Facebook and her fathers business public relations team were “threatened and blackmailed” over the existence of images. Then, the genie was let out of the bottle.
During November 2008, the images were uploaded “to a Swedish website that hosts files known as ‘BitTorrent’ files,” court papers reveal. Although not mentioned by name, the revelation that AMP legal’s team couldn’t get the site to respond to DMCA takedowns points the finger towards The Pirate Bay.
Making matters worse, AMP’s real name had been added to the BitTorrent filenames, meaning that the torrents were the first results if anyone typed in her name on the leading search engines. So this extraordinary battle was on – could it really be possible to take this content down?
For the purposes of the action, it was presumed that people most interested in downloading the photos would, in common with AMP, reside in the UK. Therefore, if a court could be convinced to issue an order declaring that the distribution of the material is illegal, then any seeder could be served and ordered to cease his or her activity. If every seeder could be attacked this way, then the torrent would simply die.
While it might be expected that the claimant claimed copyright in ‘the work’ and attempted to take it down that way, instead she sought an injunction “to preserve the right to respect for her private and family life” under the Human Rights Act 1998.
The High Court noted that although under the Human Rights Act citizens have “the right to receive and impart information without interference”, the rights of BitTorrent users to “download the digital photographic images using the BitTorrent protocol and to disseminate them by seeding them” had to be balanced against the privacy rights of the claimant.
AMP was ultimately successful in obtaining an injunction in respect of her privacy and under the Protection from Harassment Act 1997, with the Court deciding that anyone seeding the image files on BitTorrent within its jurisdiction would be committing an offense.
“There is therefore a good arguable case that the conduct of disseminating the digital photographic images amounts to harassment of the Claimant under the Protection from Harassment Act 1997 and that this is a case where it is appropriate to grant an injunction,” the Hon. Mr Justice Ramsey wrote in his decision.
As far as we are aware, this is the first case of its type where BitTorrent users are expressly forbidden by a court injunction from sharing specific material. But the big question remains – has it been successful?
AMP’s name is secret, the filenames are secret, and the court reinforces the confidentiality of both sets of information by expressly including them in the court order – revealing them would also be an offense. Since we don’t know either we can’t search for them, but it’s likely that the torrents still exist. Whether they have any seeders is key, but any within the jurisdiction of the court should beware.
According to Andrew Murray, Professor of Law at the London School of Economics, AMP’s lawyer will track down seeders in England and Wales (and anywhere in the EU thanks to a European Arrest Warrant) via their ISPs using CPR 31.17, not a Norwich Pharmacol order which is usually the preferred method in such cases.
Reading this case it is clear that AMP and/or her father and family were prepared to spend a large sum of money pursuing this action. Exactly how much is unclear but from the files appearing on, presumably, The Pirate Bay, it has taken 3 years to reach the point where seeding them is covered by an injunction.
Effective? We have no way of saying. But 10/10 for persistence and ingenuity.